9999 Filed September 28, 1990 CLAIR R. CRAMER before the iowa industrial commissioner ____________________________________________________________ : TERRY FRANKS, : : Claimant, : : vs. : : File No. 784334 CITY OF COUNCIL BLUFFS, : : A P P E A L Employer, : : D E C I S I O N and : : ARGONAUT INSURANCE CO., : : Insurance Carrier, : Defendants. : ___________________________________________________________ 9999 Summary affirmance of deputy's decision, with brief additional analysis. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TERRY FRANKS, Claimant, File No. 784334 vs. A R B I T R A T I O N CITY OF COUNCIL BLUFFS, D E C I S I O N Employer, F I L E D and DEC 18 1989 ARGONAUT INSURANCE CO., INDUSTRIAL SERVICES Insurance Carrier, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Terry Franks, claimant, against the City of Council Bluffs, Iowa, employer, and Argonaut Insurance Company, insurance carrier, for benefits as the result of an injury that occurred on January 4, 1985. A hearing was held at Council Bluffs, Iowa, on July 7, 1988, and the case was fully submitted at the close of the hearing. The record consists of the testimony of Terry Franks, claimant; Elizabeth A. Case, risk manager; Cecilia Blaskovich, vocational rehabilitation consultant; claimant's exhibit's A through F and defendants' exhibits 1 through 16. Defendants ordered a transcript and made the original available to the industrial commissioner's office. Defendants' attorney submitted an excellent posthearing brief. Claimant's attorney did not file a posthearing brief. STIPULATIONS The parties stipulated to the following matters: That an employer-employee relationship existed between claimant and employer at the time of the injury. That claimant sustained an injury on January 4, 1985, which arose out of and in the course of employment with employer. That the injury was the cause of both temporary and permanent disability. That claimant is entitled to temporary disability benefits from January 4, 1985 through February 25, 1987; that claimant was paid and received benefits for this period of time; and that claimant's entitlement to temporary disability benefits is not an issue in dispute in this case at this time. That the commencement date for permanent partial disability benefits, in the event such benefits are awarded, is February 26, 1987. That the rate of compensation in, the event of an award of benefits, is $195.58 per week. That all requested medical benefits have been or will be paid by defendants. That defendants make no claim for benefits paid prior to hearing under an employee nonoccupational group health plan. That defendants are entitled to a credit for 111 4/7 weeks of healing period benefits and 52.8 weeks of permanent partial disability benefits paid as workers' compensation benefits prior to hearing in the amount of $195.58 per week. That there are no bifurcated claims. ISSUES The parties submitted the following issues for determination at the time of the hearing: Whether claimant is entitled to permanent disability benefits, and if so, the nature and extent of benefits to which he is entitled, to include whether he is entitled to scheduled member benefits or industrial disability benefits. Whether claimant is an odd-lot employee. SUMMARY OF THE EVIDENCE Claimant, born April 8, 1943, was 41 years old at the time of injury and 45 years old at the time of the hearing. He is married and has one dependant child. He quit school in the eleventh grade, but later obtained a G.E.D. in 1974. He also completed a one year basic automotive course at Western Iowa Community College in 1978 and 1979 and received a certificate of completion, but never took a job to employ this knowledge. He was a United States Marine for six years and served two tours in Viet Nam from approximately 1968 to 1974. Past employments are manual labor jobs such as digging ditches, loading and unloading semi-trailers and box cars and working as a plumber's helper. He said that he might have acted as a straw boss on occasion in these various jobs, but was never an official supervisor or foreman (defendants' exhibits 9 and 16). Claimant started to work for the city on April 9, 1979 as a utility worker I. He became an equipment operator I on January 17, 1981, operating several kinds of heavy equipment, primarily however, claimant usually operated a front-end loader. He was terminated on April 27, 1987, because of his medical inability to perform this job after the injury (Def. ex. D, claimant's ex. 15). At the time of the injury on January 4, 1985, claimant was descending some stairs in a house that was being torn down by the city when he fell and injured his right leg and ankle. Claimant was uncertain about how or why he happened to fall. All he remembers is that he fell, heard a pop or a snap, and then it felt like ten thousand needles went through his body. He was taken to the hospital by ambulance. Timothy C. Fitzgibbons, M.D., an orthopedic surgeon, became the treating physician. He first saw and treated claimant in the emergency room and his treatment continued on through June 2, 1987. He saw claimant a number of times and reported to the insurance carrier several times. Most of this data is summarized in his deposition which follows. The parties stipulated that claimant was entitled to temporary disability benefits from January 4, 1985 until February 27, 1987. On January 27, 1987, Dr. Fitzgibbons determined claimant could not go back to his former work and vocational rehabilitation was recommended. He continued to keep claimant off work, but gave this impairment rating: In terms of a permanent impairment rating, I note, on the patient's last examination, that he lacked 10-degrees of plantar flexion and 10-degrees of dorsiflexion. This, using the AMA Guide, gives him a 4 percent impairment of the lower extremity, for each of these two differences, for a total of 8 percent just for his ankle motion loss. He also has a malrotational deformity to his tibia, as well as a secondary compensatory rotation of his entire extremity, because of the tightness that he has of his heel cord and ankle joint. Putting this altogether, I would feel that a 20 percent permanent partial disability rating of the right lower extremity would be justified. (ex. 5, p. 2) Peter D. Wirtz, M.D., an orthopedic surgeon performed an independent medical examination of claimant for defendants on January 28, 1987. He found the right leg 1/4 inch shorter than the left. He made these findings: Diagnosis: (1) Healed tibia-fibula fracture, right. (2) External rotation 10 degrees right. (3) Subtalar and ankle joint stiffness secondary to fracture. This patient's plantar flexion loss of 20 degrees is a 7% impairment of the lower extremity and the dorsiflexion of 5 degrees is a 2% impairment of the lower extremity. The inversion loss of 10 degrees is 2% impairment of the lower extremity and the eversion is a 10 degree loss which is a 2% impairment of the lower extremity. Summations of these loss of motion impairments is a 10% impairment of the lower extremity. The external rotation attitude of the leg is a 2% impairment of the lower extremity. Total impairment is an 11% impairment of the lower extremity. This patients (sic] healed fracture residuals of stiffness, angulation and rotation are a result of the severity of this injury. They will impair his function tb a slight degree, but will restrict his pre-injury work status, specifically his ability to do heavy labor, climb on and off machinery, as well as using ladders. The subtalar loss of motion makes walking on rough ground less efficient but capable of such on a slower basis. (ex. 4, p. 2) Employer had claimant examined by another independent medical examiner, Ronald W. Olnhausen, M.D., on May 5, 1987. Dr. Olnhausen found claimant sustained a severe fracture to the right tibia and ankle, has had extensive treatment and rehabilitation, but continued to have persistent disability that had not improved significantly in the past few months. The basic disability was painful ambulation. Climbing stairs, walking on uneven surfaces and other activities caused redness, swelling and pain. Several orthopedists had nothing further to offer. The doctor found the right leg shortened by one-half to one inch, the right foot rotated externally, swelling of the ankle, and limitation of motion of the ankle. He wears a lift in his right shoe and walks with a limp with his right foot externally rotated outward. Dr. Olnhausen concluded as follows: Impression and recommendations: This patient has had a previous diagnosis of a comminuted fracture of the right tibia and fibula with involvement of the ankle. He has definite residual defect including shortening of the leg, limited motion of the ankle and some post traumatic symptoms of the ankle including swelling and painful ambulation. In reviewing the job descriptions of Mr. Franks, I feel that he would not be able to perform these activities either now or in the foreseeable future. Since his orthopedic surgeons do not recommend further surgery, I would anticipate that he has reached the maximum level of function. The patient could undoubtedly work at a job which does not involve extensive standing, walking over a block or so on level ground, or excessive use of the right foot as might be experienced with heavy machinery. Otherwise I would consider his disability to be permanent. (ex. C) The Public Works Department examined the report of Dr. Olnhausen and determined the following:. ...The purpose of the evaluation was to determine the employee's ability to perform the duties of those positions within the department for which he is currently qualified. The evaluation report states that Mr..Franks would not be able to perform such duties now or in the foreseeable future. Since Mr. Franks is unable to perform the duties required by his present position or the duties of any other position with the City for which he is currently qualified, termination based on disqualification for health is recommended. (ex. D) Claimant was then terminated by letter dated August 27, 1987. The letter said claimant would be given the same preference for any city job as any city employee and told him where the jobs were published. Claimant was offered vocational rehabilitation assistance (def. ex. 15). Claimant was then given vocational rehabilitation assistance by Medisult, Inc., operated by M. Cecilia Blaskovich, R.N., C.I.R.S. Blaskovich first saw claimant on September 25, 1988. She saw him or talked to him a number of times, possibly 15 times. Two of her nurses also saw claimant on occasion. She administered the Eureka Skills Tests and the general aptitude test battery. His organizational, planning, decision making and supervisory skills were good as well as manual dexterity skills. He demonstrated transferable carpentry skills, verbal communication skills, leadership abilities, building maintenance skills, large and small hand tool skill, and mechanical skills. Blaskovich had claimant's hearing tested by an audiologist who determined that hearing in an environment with background noise might affect his communication significantly. However, there was no problem in a quiet situation or with an amplified telephone receiver (cl. ex. E). Blaskovich ordered a functional capacities examination in order to determine claimant's capabilities. These tests were performed by John M. Dobler, P.T. It was reported that claimant made a maximum effort and cooperated fully with these tests. Claimant was capable of light to medium handling, simple or firm grasping, fine manipulation or repetitive use of the hands. He could use his feet for repetitive movement to operate foot control devices. No pain was reported. Claimant could occasionally lift 21 pounds waist to shoulder, 32 pounds desk to chair, and 21 pounds chair to floor. He did report pain in the forearm, right ankle, chest and back while lifting. As to balancing claimant did demonstrate a limp. He could push 79 pounds and pull 56 pounds and could do this on occasion, but did report it hurt his leg and stomach. His ankle and knees hurt,on squatting. Walking with a limp and his leg turned out brought a recommendation he should not walk more than two to three hours per day. On lifting and carrying 25 pounds in each hand he complained of pain in his ankle and pulling across the shoulder blades. Kneeling and crawling hurt his knee and ankle. Stairs were also limited to occasional basis. His pulse rates were high and were an indication that he was out of condition. He could only tolerate sitting for 34 minutes; it was recommended he only sit for 25-35 minutes duration and not more than three to fours hours per day. He phoned the therapist later and reported that his leg was painful and swollen (def. ex. 7). Blaskovich sent claimant job potentials which she collected from five sources. She sent lists to claimant on 25 different dates beginning on September 28, 1987 and ending on June 6, 1988. Each list contained anywhere from as low as 13 to as high as 57 potential jobs. All in all these lists contained approximately 600 jobs for claimant to investigate. She said claimant was to pick and choose those that seemed pertinent to him. It was her opinion that claimant could work his way back into the job market. Blaskovich conceded that a criminal conviction claimant encountered as a youth would preclude him from getting certain jobs. She denied that she made the statement that his problem was that he was telling his prospective employers that he was fired from his last job for disciplinary reasons. There was evidence of conflict between employer and employee, but there is no evidence claimant was discharged for disciplinary reasons. Blaskovich said she believed claimant was capable.of full-time work right now, but that he has not been motivated to have a job up to this time (transcript page 106). Claimant testified that many job potentials were not suitable for him, but he visited 180 employers from October 12, 1987 to March 25, 1988 and submitted a list of these employers (cl. ex. B). Claimant contended the city had numerous jobs that he could do and singled out file clerk, dispatcher and building inspection, but the city never offered these jobs to him. Claimant contended that the city indicated it had no jobs that he could do. The letter of July 14, 1987, from public works to employee relations concludes, "Since Mr. Franks is unable to perform the duties required by his present position or the duties of any other position with the City for which he is currently qualified, termination based on disqualification for health is recommended." (cl. ex. D). Claimant testified that during his disability he has been very active in Veterans of Foreign Wars, Disabled American Veterans, Parent Teacher Organizations and assisted the police giving safety lectures to school children on a voluntary basis. Claimant verified that the mileage (3,089.2) shown on claimant's exhibit A are the miles be travelled for medical treatment and for which he was not reimbursed (cl. ex.A). Claimant related that after 90 days off work, he was forced to pay his own life and health insurance premiums.(ex. 10, p. 3). In addition, when he lost this job he also lost clothing allowance, vacation time, and retirement plan benefits. Claimant said he tried to get jobs through Job Service, but they have not been able to help him. State Vocational Rehabilitation was not able to help him. Disabled American Veterans was not able to help him. He was turned down for social security disability benefits, but was able to get some food stamps. Claimant referred to the limitations and restrictions the various doctors and the functional capacities examination put on him. His externally rotated right foot is clumsy. It gets in the way, bumps things, and gets hit a lot. Claimant said as a youth he was arrested and convicted for breaking and entering and this makes if difficult to get a job dealing with cash or security work. He is not allowed to carry a firearm. claimant said he took classes on how to dress, talk, and act in order to get a job. He said he answers questions truthfully on employment applications concerning conviction for a felony and physical limitations. Since the injury his.weight increased from 208 pounds to 230 pounds. He said he should weigh between 195 and 210. Claimant said he was earning about $6.50 when he got hurt. He said the automotive training he took is now all outdated due to the advances in cars. Furthermore, he could not do the bending and body contortions involved. Claimant said he did not go to school because he could not forego the income from working in order to go to school. Claimant took a document with him to prospective employers stating that the Joint Training Partnership Act would reimburse the employer 50 percent of claimant's wages and he still could not get employment (cl. ex. F). Elizabeth Ann Case testified that she is the risk manager for the city. Claimant's employment was terminated because they held the job open for him for over a year until it became apparent that he could no longer perform the duties of that job again. The job was held open from January 4, 1985 to August 27, 1987, a period of approximately two and one-half years (tr. p. 70). She added that claimant never applied for any other lesser jobs with the city.to her knowledge (tr. p. 72). She did not know what jobs had opened up since then that claimant could do. She testified that claimant was not fired or discharged for disciplinary reasons. He was terminated strictly for medical reasons (tr. p. 75). Dr. Fitzgibbons added a percentage of impairment for claimant's back complaints on June 2, 1976,.by a letter which read as follows: In terms of any additional assessment for the low back strain that we have recently worked up, I would think that an additional 2 percent of the body as a whole would be justified for this back strain component. Again, my feeling, as noted on the I May 1987, was that this was caused due to the excess stresses that the patient had to put on his back, from his leg problem. (def. ex. 5, p. 1) Later, Dr. Fitzgibbons, who is a board certified orthopedic surgeon, testified by deposition on September 17, 1987, that he first saw claimant on the date of the injury, January 4, 1985, at Mercy Hospital in Council Bluffs. Claimant said he fell down some stairs and injured his right leg. The doctor found a closed fracture of the right tibia and fibula. It was a comminuted fracture with involvement of the right ankle joint. Claimant was placed in a long leg cast and was hospitalized for four days until January 8, 1985. Later he was placed in a short, weight bearing cast. During the recuperation process, claimant pointed out to the doctor that his right foot rotated out externally. The doctor noted and showed the patient that the fracture, as set, was not anatomic, that is, it was not perfectly together, which would result in a shorter right leg and some external rotation. The surgical alternatives to correct these situations involved more risk than was feasible and claimant and the doctor both opted not to perform any additional surgery. claimant also noticed he has torsion of the tibia (bow legs) and this accentuated the external rotation. The doctor said he first noted that claimant mentioned back pain on May 1, 1987. A negative CT scan and EMG ruled out disc or degenerative back problems which made it more likely that the back complaints were the result of two years of limping, excess stresses, abnormal stresses that cause abnormal forces through the back and caused the back problem (Ex. 13, p. 19). Claimant had a normal range of back motion, negative straight leg raising test and no spasm. His neurological examination was good. However, the fact that the CT scan and EMG were negative doesn't mean there isn't something wrong in terms of a back pain problem. Dr. Fitzgibbons recorded that claimant's back strain, although minimal, amounted to a 2 percent permanent impairment. The doctor reiterated that he assessed a 20 percent impairment of the right lower extremity, 8 percent due to abnormal motion of the ankle (ex. 13, deposition ex. 2) and an additional 12 percent for malrotational deformity to his tibia as well as a secondary compensatory rotation of his entire extremity because of tightness of his heel cord and ankle joint. These soft tissue impairments are significant and not dealt with in the AMA Guides. Also there is the shortening of the extremity. Dr. Fitzgibbons added that there is no objective way to measure soft tissue impairment. It is relative assessment based on professional experience and judgment. The rotation puts excess stresses, different stress on the extremity and also the back and that is how he justified the 2 percent percentage on the back (ex. 13, pp. 25-28). Claimant never completely,got his motion back in his ankle joint and therefore, he never got back to walking normally again (ex. 13, p. 29). The doctor agreed that his 2 percent permanent impairment to the body as a whole for the back was based on the information that claimant reported to him (ex. 13, pp. 32 & 33). Dr. Fitzgibbons said the fall down the stairs was the cause of the fracture of the tibia and the strain symptoms in the back were caused by the limping and the fact that claimant put excess stresses on that leg which in turn put excess stresses and abnormal stresses on the back. Dr. Fitzgibbons acknowledged that he also gave impairment ratings for social security hearings (ex. 13, pp. 33 & 34). Michael J. Morrison, M.D., an orthopedic surgeon, performed an independent medical examination of claimant for defendants on January 19, 1988. He found claimant's right leg shorter than the left leg by approximately 3/8 of an inch, varus deformity of the right lower leg and subtalar joint motion restricted. He gave this conclusions: IMPRESSION: 1) Fracture, distal right tibia (10 degrees varus) - healed. 2) Restricted ankle and subtalar joint motion secondary to the above. 3) Leg length shortening, right, secondary to the above. 4) Chronic lumbar strain. (ex. 1, p. 2) He added: ...Any impairment to his lower back from this fall would be based on subjective pain and would be expected to be quite minimal. In regards to his right lower leg condition I believe that he has reached maximum medical recovery and that his job description in the future should restrict him from any prolonged ambulating, being on his feet excessively and not be expected to do any climbing, stooping or crawling. His permanency from the fracture of his right lower leg with some malunion, shortening of the extremity and limitation of motion would be 12-15% loss of physical function to his right lower leg. (ex. 1, p. 2) Dr. James Morrison testified by deposition on July 1, 1988. His curriculum vitae shows that he is a board certified orthopedic surgeon with staff appointments at several hospitals and that he is an associate professor of orthopedics at Creighton University. He examined information from Dr. Fitzgibbons, Dr. Wirtz and an EMG/NCV and CAT scan reports. He.examined claimant previously on January 19, 1988 and made a report. He determined that claimant sustained a 12 to 15 percent loss of physical function and impairment to his right lower leg (ex. 14, p. 5). He said he uses a combination of the AMA Guides and the American Academy of Orthopedic Surgeon's Manual. He determined that claimant's right leg was just under 3/8 of an inch shorter than the left leg. The fracture healed with some bowing. The combination of the way the fracture healed with bowing and the shortening of the extremity caused him to favor this extremity and to limp and bear the majority of his body weight on the outside part of his foot and ankle causing a deformity of the foot and ankle. He defined chronic lumbar strain. Chronic implies over six months. Strain refers to injury of the soft tissues of the back, such as muscles and ligaments. Disc injury by comparison refers to protruding or bulging vs. herniated disc. He could detect no nerve root irritation in the form of muscle weakness, atrophy, reflex changes or straight leg raising findings. The EMG/NCV showed no nerve root irritation. The CAT scan showed.no disc herniation. Dr. Morrison then added, "...then by a process of elimination, we arrive at the fact that here must be some soft tissue injury, either muscle or ligament, that is being aggravated and causing him his pain." (ex. 14, p. 9). He granted that these were subjective complaints of pain with no way to document them. Losing weight would help his condition. He affirmed that a leg length discrepancy can contribute to some lower back pain. He related that, "We can assume that he had some pelvic asymmetry if one leg is shorter than the other." (ex. 14, p. 11). This can be alleviated by a shoe lift and heel and sole wedges. The witness said he prefers to base ratings on objective physical findings and diagnostic testing. He explained that his remark in his report that any impairment to his lower back would be based on his pain and expected to be quite minimal means a rating in the range of 2 percent of the body as a whole. Therefore, he would not have any disagreement with Dr. Fitzgibbons' 2 percent rating (ex. 14, p. 13). The right leg was shorter because he sustained an oblique fracture allowing one end of the bone to slide up on the other bone and heal in that position. APPLICABLE LAW AND ANALYSIS The claimant has the burden of proving by a.preponderance of the evidence that the injury of January 4, 1985, is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). However, expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id., at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). An injury to a scheduled member may, because of after effects (or compensatory change), result in permanent impairment of the body as a whole. Such impairment may in turn form the basis for a rating of industrial disability. Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore plain that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability' to be computed in the terms of percentages of the total physical and mental ability of a normal man." Functional impairment is an.element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Dr. Fitzgibbons awarded 20 percent permanent impairment on the right lower extremity and 2 percent on the back. He said both were caused by the injury.of January 4, 1985. Dr. Wirtz awarded 11 percent permanent impairment on the right lower extremity. He did not address the back, however, Dr. Fitzgibbons said claimant first mentioned his back on May 7, 1987, and Dr. Wirtz saw claimant on January 28, 1987. He said claimant could no longer do heavy work, climb on and off machinery or use ladders. Dr. Olnhausen said claimant would not be able to perform his job of heavy equipment operator now or in the future. Furthermore, claimant was barred from extensive standing, walking over a block on level ground, and excessive use of the right foot as might be used in heavy machinery. The disability was permanent. Based on these reports the city terminated claimant and said he was unable to perform his present job or any other position with the city for which he is currently qualified (cl. ex. D). Dr. Morrison awarded a 12 to 15 percent permanent impairment of the right lower leg and added that 2 percent of the body as a whole would be reasonable for his back complaints. Dr. Morrison did not question that claimant had back complaints or that they were not from this injury. On the contrary, he said we can assume pelvic asymmetry if one leg is shorter than another. All of these doctors are employers' doctors. None of them was selected by claimant himself. Thus, claimant has established that he has sustained an industrial disability to the body as a whole as well as an extremely disabling injury to his lower right extremity. The right leg is shorter than the left leg. The physicians testified variously: (1) one-half to one inch; (2) three eighths of an inch; and (3) one-fourth inch. Claimant walks and stands with his right leg and foot externally rotated 10 degrees to the right or to the outside which makes it clumsy to walk or use his foot. Claimant is foreclosed from performing not only his former job of heavy equipment operator, but almost every other manual labor or strenuous job as well because all jobs that require continuous standing, walking, sitting, climbing, stooping, crawling, kneeling, squatting and heavy lifting have been ruled out by the physicians who have examined claimant. Lifting is restricted variously from 21 pounds to 32 pounds. He can only perform light to medium work in the future. Claimant's limitations cut a wide swath out of the available jobs in the everyday competitive labor market. Michael v. Harrison County, Thirty-fourth Biennial Report of the Industrial Commissioner 218, 220 (Appeal Decision January 30, 1979); Rohrberg v. Griffin Pipe Products Co., I Iowa Industrial Commissioner Report 282 (1984). Therefore, claimant is not only foreclosed from all of his former jobs of a manual labor nature, but he is also precluded from a large portion of the jobs in the competitive labor market that are the most plentiful, easiest to get and often pay the most.. He is relegated to minimum wage jobs or jobs that would only pay slightly more than the minimum wage. Furthermore, due to the severe restrictions placed on him by all of the doctors and the functional capacity evaluation, there are a number of lower paying jobs that he cannot perform. At his age, in the mid-forties, claimant is at the peak of his earning capacity. This makes claimant's loss more severe than it would be for a younger or older worker. Becke v. Turner-Busch, Inc., Thirty-fourth Biennial Report of the Industrial Commissioner 34 (Appeal Decision 1979); Walton v. B & H Tank Corp., II Iowa Industrial Commissioner Report 426 (1981); McCoy v. Donaldson Company Inc., file nos. 752670 & 805300 (Appeal Decision April 28, 1989). There is some possibility claimant could be retrained in his mid-forties in spite of his eleventh grade education and G.E.D. certificate. Retraining is one of the considerations involved in determining industrial disability. However, as claimant pointed out how is he going to support his family and go to school at the same time. If he opts for retraining of an educational type or vocational type it will be costly from the point of view of the educational costs as well as the loss of income while learning. Conrad v. Marquette School, Inc., IV Iowa Industrial Commissioner Report 74, 78 (1984). Claimant has a lot of obstacles in finding work. He is over weight and deconditioned. He has a felony conviction, but it is so long ago it should not be too detrimental. He has led an honorable life since then in the military and civilian life. He has an honorable discharge from the United States Marines and commendations for civic service for his community. He had bad employment relations with the city and he should not be surprised. if they are not able to wholeheartedly recommend him to future employers. The biggest obstacle to employment is the seriousness of this injury and the resulting impairment and disability from it. He is not only disabled, but he looks clumsy and disabled by the limp and outward turned foot. His employment opportunities are certainly limited as well as the wage that he could command. As stated above, industrial disability has been,defined as reduction in earning capacity. Olson, 255 Iowa 1112, 1120, 125 N.W.2d 251, 256 (1963); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). One of the criteria to be used to determine,industrial disability is "...inability, because of injury, to engage in employment for which he is fitted." McSpadden, 228 N.W.2d at 192 quoting Olson 225 Iowa at 1120, 125 N.W.2d at 257. Change of job condition, such as being asked to take a lower paying job, can justify an increase of industrial disability without a change in physical condition. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980). The idea is that it is not so much the injury, but rather the economic loss of work that causes industrial disability. The Iowa Supreme Court has stated that an employer's refusal to provide any work for an injured employee is a factor to disability irrespective and independent of functional impairment. McSpadden, 288 N.W.2d 181, 192 (Iowa 1980). In this particular case, employer involuntarily discharged claimant because he was unable to perform the physical requirements of his job of operating heavy equipment. Refusal of an employer to employ an injured employee is strong evidence of lack of employability. Professor Larson makes a point which applies to this particular case, "At the outset, one might suppose that the refusal of defendant-employer himself to employ the claimant would be the strongest kind of evidence against that employer." Then he asserts what as a practical matter ought to be obvious, "It is hardly necessary to labor the inconsistency of permitting an employer to fire a man for physical defects caused by his own employment conditions, and then to disclaim compensation liability by presenting medical evidence that the man is not really disabled after all." 2 Larson, Workmen's Compensation Law, section 57.61(b) at pages 10-173 and 10-176; Killinger v. Mark Wells Distributing Co., file nos. 775851 & 808991, filed October 27, 1989. Wherefore,.based upon the foregoing factors, all of the. factors used to determine industrial disability, and employing agency expertise (Iowa Administrative Procedure Act 17A.14(5)], it is determined that claimant has sustained a 65 percent industrial disability to the body as a whole. No allowance can be made for the medical mileage submitted by claimant in the amount of 3,089.2 miles because medical benefits were not designated as an issue on the hearing assignment order. Presswood v. Iowa Beef Processors, Inc., file no. 735442 (Appeal Decision November 14, 1986). However the parties stipulated on the prehearing report that all medical expenses have been or will be paid by defendants. Therefore, claimant should present his claim for medical mileage to defendant insurance carrier directly. Under the odd-lot doctrine, which was formally adopted by the Iowa Supreme Court in Guyton v. Irving Jensen Co., 373 N.W.2d 101 (Iowa 1985), a worker becomes an odd-lot employee when an injury makes the worker incapable of obtaining employment in any well-known branch of the labor market. An odd-lot worker is thus totally disabled if the only services the worker can perform are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Id., citing Lee v. Minneapolis Street Railway Company, 230 Minn. 315 320, 41 N.W.2d 433, 436 (1950). Claimant argues for application of the "odd-lot" doctrine. This doctrine allows the claimant to establish a prima facie case for unemployability and entitlement to permanent total disability benefits from a factual showing of a reasonable, but unsuccessful effort to find suitable work. Such a showing automatically shifts the burden of going forward to the defendants on the issue of availability of suitable work. If defendants fail to go forward, claimant is therefore automatically entitled as a matter of law to an award of permanent total disability. See Guyton, 373 N.W.2d 101, 105 (Iowa 1985). However, the industrial commissioner has directed that this doctrine cannot be applied by a deputy commissioner without a showing of a reasonable effort to secure suitable employment. Collins v. Friendship Village, Inc., case number 679258 (Appeal Decision filed October 31, 1988; Pyle v. Carstensen Freight Lines, Inc., case number 753661 (Appeal Decision filed July 27, 1987). Claimant did not sustain the burden of proof by a preponderance of the evidence that he is an odd-lot employee. Claimant is intelligent and industrious. His GATB scores were good. In the past he completed a basic automotive training course and received a certificate. He completed schools in the military service. Recently he has performed extensive volunteer organizational work for several civic organizations and local schools. He has demonstrated that he does have the skills that Blaskovich pointed out. Even though claimant may have called upon a large number of employers he did not demonstrate why he was not hired by any of these employers. He has ability. He is personable. He is not one of the hard core unemployed. Umphress v. Armstrong Rubber Company, file no. 723184 (Appeal Decision August 27, 1987). Blaskovich is also probably correct that there are jobs claimant can do if and when he wants to find them. She interviewed claimant, tested him, talked to him several times and her opinion is respected. Testimony of vocational experts is useful in determining industrial disability. Webb v. Lovejoy Construction Co., II Iowa Industrial Commissioner Report 430 (Appeal Decision October 20, 1981). There were a number of potential jobs on the lists submitted by Blaskovich to claimant that claimant could perform. With retraining there are even a larger number of jobs claimant could decide to pursue. Blaskovich may be correct in her statement that claimant was not motivated to find work at this time while his workers' compensation claim is pending. In summary, claimant did not sustain the burden of proof by a preponderance of the evidence that he was incapable of obtaining employment in any well-known branch of the labor market or that his abilities are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist. Assuming for purposes of argument that claimant did prove a prima facie case of odd-lot status, defendants have gone forward and shown the availability of suitable work in claimant's employment market as well as claimant's ability to perform some jobs. FINDINGS OF FACT Wherefore, based upon the evidence presented, the following findings of fact are made: That the various orthopedic surgeons, three of them, all of which were selected by defendants determined that claimant sustained a permanent physical and functional impairment of his right lower extremity of variously between 11 and 20 percent. That his right leg is shorter than his left leg due to this injury. That claimant's right foot and leg rotate externally when he walks making walking clumsy, awkward and difficult. That claimant walks with a noticeable limp even though his shoe has been orthopedically corrected. That claimant has sustained soft tissue injury to the muscles and ligaments of his back. That Dr. Fitzgibbons and Dr. Morrison determined that claimant sustained a 2 percent physical and functional impairment to the body as a whole to his back. That claimant is severely limited in his employment opportunities. That claimant is unable to do active manual labor type of employments or generally strenuous work in the future. That claimant's ability to walk, sit, stand, climb, crawl, stoop, kneel, lift, use his right leg or foot and balance his body is limited as verified by the various doctors and functional capacities evaluation. That claimant is probably limited primarily to minimum wage types of jobs and he is deconditioned for many of them due to this injury. That claimant is capable of either educational or vocational retraining, but either one is a considerable amount of financial expense and will be difficult at claimant's age. That claimant was age 41 at the time of the injury and age 45 at the time of the hearing, quit school in the eleventh grade, and later obtained a G.E.D.. Claimant sustained a severe injury which required a long period of healing. That claimant probably needs some kind of work hardening program before it is possible for him to engage in almost any kind of employment successfully. That Blaskovich demonstrated several jobs that claimant probably could do if he tried hard enough and that she demonstrated that claimant has a number of very desirable abilities, skills and transferable skills. That claimant demonstrated that he is industrious and has a great deal of ability by his performance of many volunteer jobs with various organizations. CONCLUSIONS OF LAW Wherefore, based on the evidence presented and the foregoing principles of law, the following conclusions of law are made: That claimant sustained the burden of proof that the injury of January 4, 1985 was the cause of permanent disability. That claimant sustained an industrial disability to the body as a whole because the leg injury was the cause of his permanent back injury. That claimant is entitled to 325 weeks of permanent partial disability benefits. That claimant did not sustain the burden of proof by a preponderance of the evidence that he is an odd-lot employee. ORDER THEREFORE, IT IS ORDERED; That defendants pay to claimant three hundred twenty-five (325) weeks of permanent partial disability benefits at the rate of One Hundred Ninety-five and 58/100 Dollars ($195.58) per week in the total amount of Sixty-three Thousand Five Hundred Sixty-three and 50/100 Dollars ($63,563.50). That all accrued benefits are to be paid in a lump sum. That interest will accrue pursuant to Iowa Code section 85.30. That defendants are entitled to a credit for fifty-two point eight (52.8) weeks of workers' compensation permanent partial disability benefits paid prior to hearing at the rate of one Hundred Ninety-five and 58/100 Dollars ($195.58) per week in the total amount of Ten Thousand Three Hundred Twenty-six and 62/100 Dollars ($10,326.62). That the costs of this action are charged to defendants pursuant to Division of Industrial Services Rule 343-4.33. That defendants file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 18th day of December, 1989. WALTER R. McMANUS, JR.. DEPUTY INDUSTRIAL COMMISSIONER. Copies To: Mr. Michael Murphy Attorney at Law 100-101 Park Bldg., Council Bluffs, IA. 51501 Mr. Barry Moranville Attorney at Law 974-73rd St. STE 16 Des Moines, IA 50312 51401; 51402.40; 51803; 51803.10; 51807; 54100 Filed December 18, 1989 WALTER R. McMANUS, JR. BEFORE THE IOWA INDUSTRIAL COMMISSIONER TERRY FRANKS, Claimant, vs. File No. 784334 CITY OF COUNCIL BLUFFS, A R B I T R A T I 0 N Employer, D E C I S I 0 N and ARGONAUT INSURANCE CO., Insurance Carrier, Defendants. 51401; 51402.40; 51803; 51803.10; 51807; 54100 Claimant awarded 65 percent industrial disability. Claimant sustained a comminuted fracture of the tibia, fibula that went into the ankle. There was malunion upon healing, right leg ended up shorter than left leg, right foot and leg rotated externally making it clumsy and awkward to walk, and claimant walked with a limp in spite of built-up shoes. Impairment ratings ran from 11 percent to 20 percent on the right lower extremity and 2 percent on the back which was affected by the change of gait. All four physicians were employer physicians. Claimant is foreclosed from former job of heavy equipment operator as well as practically all strenuous or manual labor jobs. He was limited to minimum wage type jobs and could not perform many of them. City employer terminated him because he could not perform his job and they said they did not have anything else he could do. Claimant capable of educational or vocational training, but it would be expensive and difficult for him. Claimant performed extensive civic service for the community during his period of disability. He was not odd-lot even though he produced a list of 180 employers he had contacted without success of obtaining a job. The opinion of the vocational rehabilitation specialist on claimant's motivation to find work was accepted as instructive and valid. He was intelligent and industrious. He was not hard-core unemployed. Claimant was deconditioned and needed work hardening. This case does not expound any new precedents, but makes an interesting application of a number of existing precedents. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHERYL A. THOMPSON., Claimant, VS. MARSHALL & SWIFT, INC., File No. 784394 Employer, A P P E A L and D E C I S I 0 N U. S. INSURANCE GROUP, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. STATEMENT OF THE CASE Defendant employer appeals and the Second Injury Fund of Iowa (hereinafter the Fund) cross-appeals from an arbitration decision awarding healing period benefits, medical expenses, and permanent partial disability benefits which were to be paid by both defendant employer and the Fund. The record on appeal consists of the transcript of the arbitration hearing; joint exhibits 1 through 23, 27 and 28; claimant's exhibits 24 through 26 and 29 through 31; and defendants' exhibits A through D. All parties filed briefs on appeal. ISSUES The issues on appeal are the nature and extent of claimant's alleged disability, when claimant's healing period ended, and the liability, if any, of the Fund. REVIEW OF THE EVIDENCE The arbitration decision dated April 11, 1988 adequately and accurately reflects the pertinent evidence and it will not be reiterated herein. THOMPSON V. MARSHALL & SWIFT, INC. Page 2 APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS The analysis of the evidence in conjunction with the law in the arbitration decision is adopted. The following additional comments are also appropriate. While the deputy did not specifically so state, he was following agency precedent when he determined that there was liability of the Fund. For the purpose of imposing Fund liability, an injury which affects a scheduled member is all that is necessary. See Cook v. Iowa Meat Processing Company, Appeal Decision, May 12, 1987. As found by the deputy and adopted herein the work injury on January 8, 1985 affected claimant's body as a whole; however, that injury also resulted in loss of use of claimant's right arm. Iowa Code section 85.64 requires only that claimant lose the use of a listed member, not that the disability be confined to that member. For purposes of determining the amount of the liability of the Fund, the extent of the disability from the work-related injury must be considered. The employer is liable for the disability resulting from the work-related injury. In this case, the disability resulting from the work-related injury was an industrial disability of 45 percent of the body as a whole. The Fund's liability is the cumulative industrial disability, less the total disability of the two injuries. Second Injury Fund v. Neelans, 436 N.W.2d 355 (Iowa 1989). In this case the Fund's liability is 50 percent (250 weeks) less the total of 45 percent industrial disability from the work injury (225 weeks) and ten percent of the leg (22 weeks) or three weeks, i.e., 250 - (225 + 22) = 3. FINDINGS OF FACT 1. Claimant was born February 28, 1964 and was twenty years old at the time of the work injury. 2. Claimant graduated from high school and got above average grades in high school. 3. Claimant has no training or formal education beyond high school. 4. Claimant's employment history is manual labor which has not been heavy labor. 5. Claimant was injured on January 8, 1985 when her right hand and forearm was pulled into an ironer machine. The initial trauma did not include the shoulder. THOMPSON V. MARSHALL & SWIFT, INC. Page 3 6. During the weeks and months that followed, claimant developed a reflex sympathetic dystrophy of the right upper extremity which, in turn, produced impairment in claimant's right shoulder. 7. Reflex sympathetic dystrophy is a disorder of the autonomic nervous system and, as indicated by Dr. DeBartolo, is not a problem that is limited to the right arm, but extends into the shoulder. 8. Following the injury, claimant was medically incapable of performing work in employment substantially similar to the work she performed at the time of injury from January 8, 1985 until August 27, 1986, when her recovery and treatment had progressed to the point it was medically indicated that no additional treatment options remained and that further significant improvement from the injury was not anticipated. 9. Claimant was earning $4.00 per hour at the time of injury, but now earns $4.20 per hour. 10.At the time of the arbitration hearing claimant had returned to work and through the cooperation of the defendant employer was working. However, claimant had been able to generally work for only four hours per day. 11.Claimant has a 30 percent permanent functional impairment of the right upper extremity, including the shoulder, which is equivalent to a 23 percent permanent partial impairment of the whole person. 12.Claimant had a preexisting 10 percent permanent functional impairment of her left leg prior to the time she commenced employment with defendant employer. 13.Claimant has a 45 percent loss of earning capacity which was the result of the injuries she sustained on January 8, 1985. 14.Claimant currently has a 50 percent loss of earning capacity which was the result of the injuries she sustained on January 8, 1985 and her preexisting impairment to her left leg. 15.All the medical care that claimant has received was reasonable treatment for the injury and the expenses charged for that treatment were fair and reasonable, including in particular the $712.70 charged by the Mayo Clinic as shown in exhibit 24. THOMPSON V. MARSHALL & SWIFT, INC. Page 4 CONCLUSIONS OF LAW Claimant has proved that she had a preexisting disability of 10 percent of the left leg. Claimant has proved that the permanent partial disability from the work injury she sustained on January 8, 1985 was an injury to the body as a whole and it affected her right arm. Claimant has proved that the work injury sustained on January 8, 1985 was a cause of an industrial disability of 45 percent. Claimant has proved a current industrial disability of 50 percent as a result of the work injury and the preexisting disability to her left leg. Claimant has proved that her healing period commenced on January 8, 1985 and ended August 27, 1986. Claimant has proved entitlement to second injury fund benefits of three weeks. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That the employer and insurance carrier pay claimant eighty five and two-sevenths (85 2/7) weeks of compensation for healing period at the stipulated rate of one hundred twelve and 02/100 dollars ($112.02) per week commencing January 8, 1985. That the employer and insurance carrier pay claimant two hundred twenty-five (225) weeks of compensation for payment of permanent partial disability at the stipulated rate of one hundred twelve and 02/100 dollars ($112.02) per week payable commencing August 28, 1986. That the employer and insurance carrier receive full credit for benefits they have previously paid. That all past due accrued amounts paid to claimant by the employer and insurance carrier be in a lump sum together with interest in accordance with section 85.30 of the Iowa Code. That the employer and insurance carrier pay claimant's medical expense with the Mayo Clinic in the amount of seven hundred twelve and 70/100 dollars ($712.70). THOMPSON V. MARSHALL & SWIFT, INC. Page 5 That the Second Injury Fund of Iowa pay claimant three (3) weeks of compensation for permanent partial disability at the stipulated rate of one hundred twelve and 02/100 dollars ($112.02) per week commencing at the time the employer completes making the permanent partial disability compensation payment which is computed to be December 20, 1990 (225 weeks after August 28, 1986). That the employer and insurance carrier pay the costs of this action including costs of transcription of the arbitration hearing pursuant to Division of Industrial Services Rule 343-4.33. That the employer and insurance carrier file claim activity reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 28th day of August, 1989. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey III Attorney at Law 214 North Adams P.O. Box 679 Mason City, Iowa 50401 Mr. Barry Moranville Attorney at Law 974 73rd Street, Suite 16 Des Moines, Iowa 50312 Mr. Robert D. Wilson Assistant Attorney General Tort Claims Division Hoover State office Building Des Moines, Iowa 50319 1802,1803,1803.1,3202 Filed August 28, 1989 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHERYL A. THOMPSON, Claimant, VS. MARSHALL & SWIFT, INC., File No. 784394 Employer, A P P E A L D E C I S I 0 N and U. S. INSURANCE GROUP, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. 1802 Claimant's healing period extended while diagnostic tests were being conducted to determine whether or not surgery should be performed. The healing period ended when the physicians determined that the surgery should not be performed, no further aggressive treatment was recommended, and an impairment rating was assigned. 1803 - 1803.1 Claimant's injury to her right hand and arm extended to the shoulder and the body of the whole. Claimant's condition included a reflex sympathetic dystrophy. Disability was evaluated industrially. 3202 Claimant's prior injury to her left leg was found to be permanent and a ten percent disability. Work related injury was evaluated industrially and found to be 45 percent. Claimant's cumulative industrial disability was 50 percent. Second Injury Fund is liable for the difference between the cumulative industrial disability (50 percent) and the total of the work injury (45 percent industrial) and the disability of the leg (ten percent). Second Injury Fund liability was 3 weeks. i.e. 250 - (225 + 22) = 3. BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHERYL A. THOMPSON, Claimant, vs. MARSHALL & SWIFT, INC., File No. 784394 Employer, A R B I T R A T I 0 N and D E C I S I 0 N U. S. INSURANCE GROUP, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. INTRODUCTION This is a proceeding in arbitration brought by Cheryl A. Thompson against Marshall & Swift, Inc., her employer, the U. S. Insurance Group, the employer's insurance carrier, and the Second Injury Fund of Iowa. The case was heard and fully submitted on September 18, 1987 at Des Moines, Iowa. The record in this proceeding consists of testimony from Cheryl A. Thompson, Carol Keel, Robert Thompson, Cecilia Blaskovich, Steven Karabatsos and Linda Rezab. The record also contains joint exhibits 1 through 23, 27 and 28, claimant's exhibits 24, 25, 26, 29, 30 and 31 and defendants' exhibits A, B, C and D. ISSUES The issues presented by the parties at the time of hearing are determination of claimant's entitlement to compensation for healing period, determination of claimant's entitlement to compensation for permanent partial disability, section 85.27 benefits, interest and costs. The major issue in the case is whether the injury that claimant sustained on January 8, 1985 is a scheduled member injury to the arm or an injury to the body as a whole. A further issue for determination is the liability, if any, of the Second Injury Fund of Iowa. It was stipulated that claimant sustained an injury on January 8, 1985 which arose out of and in the course of her employment with the employer and that the injury is a cause of temporary disability during a period of recovery and of permanent disability. It was stipulated that, in the event of an award, the rate of compensation is $112.02 per week. With regard to the disputed medical expenses, which are $712.70 from the Mayo Clinic, it was stipulated that the provider of the services would testify that the treatment was reasonable and necessary treatment for the work injury and that the fees charged were reasonable. Claimant also seeks authorization for pain clinic services. It was further stipulated that claimant has been paid healing period compensation from January 9, 1985 through January 7, 1986 and 75 weeks of compensation for permanent partial disability commencing January 8, 1986 at the correct rate. SUMMARY OF EVIDENCE The following is a summary of evidence presented in this case. Only the evidence most pertinent to this decision is discussed, but all of the evidence received at the hearing was considered in arriving at this decision. Conclusions about what the evidence showed are inevitable with any summarization. The conclusions in the following summary should be considered to be preliminary findings of fact. Cheryl A. Thompson is a 23-year-old married woman who graduated from high school in 1982, but has no further formal education. She testified that, while in high school, she obtained A's and BOs. While in high school, claimant worked as a waitress. After graduation, she worked for a film developing company. She commenced employment with Marshall & Swift, Inc. in May, 1983. Claimant testified that she had been earning $4.45 per hour in the photography business, but took a cut in pay to $4.00 per hour in order to work days at Marshall & Swift. In 1980, claimant injured her left hand and wrist while working as a waitress. She was taken off work, treated, recovered and returned to work. No permanent impairment was anticipated (exhibit 1, pages 1-3). Claimant testified that she currently has no problems with her left hand and wrist. Claimant testified that she fractured and dislocated her left knee while in high school gym class. She saw Wayne E. Janda, M.D., on April 30, 1981 and was treated with a cast and a knee immobilizer. Claimant continued to have difficulty with the knee (exhibit 1, pages 3-5). On September 16, 1982, Dr. Janda performed surgery on the knee consisting of arthrotomy of the left knee, shaving and drilling of the patella, lateral retinacular release and medial quadriceps plasty (exhibit 1, page 6). After an extended period of recovery, claimant was released to return to work on January 19, 1983. Her final follow-up visit was on February 16, 1983 when it was noted that her knee pain had disappeared, knee motion was good and the kneecap was stable, but claimant continued to exhibit below normal extension of the knee due to weak quadriceps (exhibit 1, page 8). Claimant testified that her left knee is now weaker than the right and that she must watch it closely when turning sharply, but that it is otherwise pretty much normal. She stated that the knee did not prevent her from working at Marshall & Swift. She testified that the injury she sustained to the knee in November, 1985, did not produce any permanent change in the condition of the knee. Claimant denied having any prior injuries to her right arm or shoulder, except for an occasion in 1982 when she bumped her shoulder on a door knob. Claimant stated that it resolved completely in approximately three days. Claimant testified that she was hired at Marshall & Swift to work on the eight roll flat iron, but that at times she also THOMPSON V. MARSHALL & SWIFT, INC. Page 3 worked in other departments. She stated that she worked 40 hours per week and liked her job. During the morning of January 8, 1985, claimant was feeding towels into the ironer when the machine pulled her arm into the beater bar mechanism. Her arm was caught between the moving beater bar and the stationary bar, but her hand was not pulled into the roller mechanism. Claimant shut off the machine, released herself from it, reported the injury and was taken to North Iowa Medical Center where she was examined and treated by E. D. Kennedy, M.D. (exhibit 2). Claimant testified that she remained off work until January 10 when she was called in. She stated that she tried to work, but began developing sharp, shooting pains in her shoulder and clawing of the fingers of her hand. She was then permitted to see Dr. Janda. Claimant went to the St. Joseph Mercy Hospital Emergency Department where Dr. Janda examined her and diagnosed an anterior compartment syndrome and carpal tunnel syndrome. Emergency decompression surgery by fasciotomy of the anterior compartment and carpal tunnel release was performed (exhibit 1, pages 8 and 9; exhibit 3, page 1). Claimant was discharged from the hospital on January 17, 1985 (exhibit 3, page 3). During the following weeks, claimant developed increasing pain and swelling in the hand and arm which was initially thought to be an infection. Elbow and shoulder motion was also painful and guarded. Claimant was again hospitalized from February 6 until February 14, 1985 where she was diagnosed as having a reflex sympathetic dystrophy secondary to the work injury (exhibit 1, page 10; exhibit 5). A period of recuperation involving treatment with medication and therapy followed. Dr. Janda noted satisfactory progress until April 12, 1985, at which time claimant had discontinued her medications due to pregnancy. At that time, Dr. Janda noted that she had limitation of right wrist and shoulder motion. He recommended that she enter physical therapy and that she contact the employer about light-duty or part-time work (exhibit 1, page 12). At her next visit on April 24, 1985, claimant's condition had deteriorated (exhibit 1, page 12). Over the next few weeks, she alternated between progress and deterioration. Sant M. S. Hayreh, M.D., examined claimant on June 7, 1985. He indicated that claimant exhibited restricted motion of the right wrist, but that the right shoulder and elbow movements were full, free and painless. Dr. Hayreh noted sensory and strength abnormalities in claimant's right wrist and hand. An EMG indicated that claimant's carpal tunnel syndrome had progressed (exhibit 1, page 14; exhibit 6). Claimant continued to be symptomatic and to treat with Dr. Janda. On July 22, 1985, active range of motion of her right shoulder was reported to be abduction 90 degrees, flexion 90 degrees, extension 35 degrees, internal rotation 65 degrees and external rotation 60 degrees (exhibit 1, page 16). THOMPSON V. MARSHALL & SWIFT, INC. Page 4 Biofeedback therapy was attempted without success. Claimant participated in physical therapy where she demonstrated 110 degrees of shoulder abduction and generally increased mobility (exhibit 1, page 17). A referral was made for an assessment to be performed by James H. Dobyns, M.D., a hand surgeon at the Mayo Clinic. The first visit was on August 29, 1985, the second on September 19, 1985. Dr. Dobyns diagnosed pain dysfunction syndrome, right upper limb with multiple factors including (1) autonomic dysfunction, (2) musculoskeletal triggers including the flexor muscles and tendons of the volar forearm and the volar wrist capsule, (3) multiple peripheral nerve neuralgia including both the median and ulnar nerves, (4) persistent swelling, some generalized but also some localized and even compartmental swelling in the thumb intrinsic compartment, and (5) severe muscle alienation, co-contraction and inhibition. At the first visit, it was recommended that claimant be referred to the hand therapy department for a review and treatment program and also to the pain clinic for consideration of sympathetic blocks and other treatments as they may indicate. The pain clinic recommended a series of stellate blocks coordinated with physical medicine treatments. It was noted that claimant's shoulder dysfunction had increased considerably between the two visits. Dr. Dobyns detected a considerable degree of conversion, hostility and panic in claimant's reactions. He recommended that her workers' compensation claim be settled and that she be placed in the pain management center program (exhibit 7). Claimant continued in Dr. Janda's care through the end of 1985. Her treatment consisted primarily of therapy and medication. Claimant reinjured and severely sprained her left knee on November 4, 1985. A week later, the knee appeared to have improved considerably and no further indication appears in the record of continuing complaints from or treatment for that incident (exhibit 1, pages 19-21). Claimant made a brief, unsuccessful attempt to return to work on November 21, 1985. She worked approximately four hours. The following day, she returned to Dr. Janda in acute distress (exhibit 1, page 22). A psychological evaluation of December 5, 1985 found that claimant was becoming significantly depressed, but no particular course of treatment was recommended (exhibit 9). Dr. Janda left the Mason City area and, in January, 1986, claimant's care was transferred to Thomas F. DeBartolo, M.D., who examined her and diagnosed her condition as reflex sympathetic dystrophy. His initial notes indicate that claimant's shoulder abducted only 60 degrees. Her internal and external rotation appeared to be the same as what had been observed at the Mayo Clinic on September 19, 1985 (exhibit 10, page 2). Stellate ganglion blocks were administered which provided temporary relief. On February 7, 1986, Dr. DeBartolo recommended that claimant be hospitalized for a continuous stellate ganglion THOMPSON V. MARSHALL & SWIFT, INC. Page 5 block. The workers' compensation rehabilitation specialist objected, however, and required a second opinion (exhibit 10, pages 4 and 5). Claimant returned to the Mayo Clinic on March 3, 1986 and was seen by Dr. Dobyns. The suggested procedure was confirmed. It was also indicated by one of the Mayo Clinic physicians that claimant's shoulder pain was myofascial in nature and should resolve with proper physical therapy (exhibit 11). The continuous blocks were administered, but with only temporary success (exhibit 23, page 72). Over the spring and summer of 1986, claimant's care was transferred to the Mayo Clinic and additional blocks and trigger point injections were administered (exhibits 12, 13 and 15). In a report dated August 27, 1986, Dr. Dobyns concluded that a sympathectomy was not indicated, that claimant's status had been unchanged for the past year and that maximum healing had probably occurred. He rated claimant as having a 30% permanent partial impairment of the right upper limb, including the shoulder and shoulder girdle, which was equivalent to a 23% impairment of the whole body. He indicated that any job she might consider should be a one-handed job. His final diagnosis was that she had pain dysfunction syndrome of the right upper limb with multiple factors including musculoskeletal trigger areas, peripheral nerve trigger areas, chronic recurrent swelling and chronic pain behavior including motor co-contraction and inhibition, motor and sensory alienation. Dr. Dobyns again recommended pain management center treatment in an effort to teach claimant new patterns of function and adjustment. He indicated that any job she might consider should be a one-handed job (exhibits 15 and 20). Claimant had fallen on her right arm in early August, 1986, but Dr. Dobyns indicated that the fall actually increased the range of motion of her wrist and that it did not significantly affect her disability (exhibits 14, 15 and 20). A second unsuccessful attempt to resume employment was made in October, 1986. Claimant complained of increased symptoms and, on the advice of Dr. Dobyns, the attempt was discontinued (exhibit 10, page 8; exhibit 20). Claimant was evaluated by Warren N. Verdeck, M.D., on October 28, 1986. Dr. Verdeck diagnosed claimant as having a post-traumatic reflex sympathetic dystrophy of the right upper extremity. His evaluation showed right shoulder range of motion to be 60 degrees for abduction, forward flexion and internal rotation. External rotation was 15 degrees. Dr. Verdeck agreed with the 30% permanent partial disability rating of the extremity that was assigned by Dr. Dobyns. He felt that the problem in claimant's shoulder was causally connected to the work injury (exhibits 16 and 19). John R. Walker, M.D., evaluated claimant on November 3, 1986. He rated claimant as having a 10% permanent partial impairment of the left lower extremity and a 40% permanent partial impairment of the right upper extremity. When examining claimant's right shoulder, he found full, normal flexion, extension, internal rotation and external rotation. He found abduction to be unexplainedly limited to 90 degrees. Dr. Walker felt that claimant had a tremendous psychiatric overlay. He THOMPSON V. MARSHALL & SWIFT, INC. Page 6 indicated that she probably had some impairment of the shoulder, but was unable to determine how much, if any (exhibits 17 and 18). Exhibit 23 is the deposition of Thomas F. DeBartolo, M.D., taken September 14, 1987. Dr. DeBartolo is an orthopaedic surgeon who specializes primarily in hand surgery. Dr. DeBartolo became involved in claimant's care in January, 1986 and has remained involved since that time. Dr. DeBartolo diagnosed claimant's condition as a reflex sympathetic dystrophy. He stated that it is a poorly understood condition that is associated with trauma. Once it develops, it is manifested by constant pain, swelling, limitation of motion or stiffness and also with certain vasal motor changes which can include an altered sweat pattern, a nonphysiologic sense of numbness, increased hair growth, changes in skin coloration and changes in bone mass. He stated that it occurs as part of the normal response of the autonomic nervous systems to an injury, but then for some reason the process does not reverse itself, leaving excess fluid, swelling and stiffness (exhibit 23, pages 61-63). Dr. DeBartolo has observed increased sweating and swelling in claimant's right upper extremity. He stated that she has developed a hand-shoulder pain syndrome and that patients with reflex sympathetic dystrophy do not necessarily improve or recover with the passage of time (exhibit 23, pages 25-33). Dr. DeBartolo testified that claimant's condition has been essentially stable since he began treating her in January, 1986. He testified that, after the nerve blocks had been administered, there was no further treatment to offer. He indicated that the decision to proceed no further toward surgery or other aggressive treatment was made in the summer of 1986 as shown in Dr. Dobyn's report of August 27, 1986 (exhibit 23, pages 39, 73-75). Dr. DeBartolo has not rated claimant's permanent partial disability, but stated that, when he first examined her, she had limited shoulder motion and diffuse tenderness in her shoulder. He felt that claimant has permanent impairment in her right upper extremity and shoulder. Dr. DeBartolo stated that the shoulder pain and limitation is related to the reflex sympathetic dystrophy and not directly to the injury itself. He stated that his opinion is that it would have made no difference regarding whether or not claimant's shoulder was twisted in the original trauma. Dr. DeBartolo stated that any permanent impairment in claimant's right upper extremity or shoulder is due to the work injury of January, 1985 and that she has no permanent impairment from the fall that occurred on or about July 31, 1986 (exhibit 23, pages 14, 66, 67, 70, 71, 90 and 91). Dr. DeBartolo stated that claimant's neck complaints are not a structural or physiological problem, but that they are related to her posture (exhibit 23, page 79). Dr. DeBartolo indicated that pain management center treatment may be advisable, dependent upon claimant's success in returning to employment. He stated that the bottom line regarding her physical restrictions is that she have a one-armed job which involves minimal use of the right upper extremity THOMPSON V. MARSHALL & SWIFT, INC. Page 7 (exhibit 23, pages 76 and 77). Claimant testified that she has had discomfort in her shoulder ever since the injury happened, but that, initially, the severe pain was in her wrist and forearm. She stated that the pain in her shoulder joint is located in the front of the shoulder and also in the back of the shoulder blade. Claimant testified that she can briefly perform some activities with her right hand such as writing, but that she has difficulty holding and carrying things in the right hand. She stated that she is unable to lift her arm above her shoulder, but that she does have some motion of the right shoulder. Claimant stated that her automobile is a standard shift and that she uses her left hand, rather than the right, to shift the gears when she drives by herself. Claimant testified that she wants to retain her job and desires to continue to work. She stated that the prior attempts to resume employment in 1985 and 1986 produced severe pain and that she was therefore unable to follow through with them. Claimant testified that she began the process of attempting to resume employment in early 1987. In late March, the employer sent a letter inviting her to return to work, but it was necessary to get a doctor's report as to restrictions before she could actually return to employment. Claimant stated that she did return to work on July 17, 1987 and had continued to work up THOMPSON V. MARSHALL & SWIFT, INC. Page 8 until the time of hearing. She stated that she still has stabbing pain in the front and back of her shoulder and numbness in her wrist and that she has had problems performing the job. She stated that she has pain going down from the shoulder joint to the elbow and constant numbness in her fingers. Claimant stated that she now works four hours per day and has tried to move up to six hours, but that the doctor advised her to remain at four hours until she gets along better. She stated that she would like to work up to eight hours per day and work full-time, if she could. Claimant testified that the Mayo Clinic bill shown in exhibit 24 was incurred for treatment of her right arm and shoulder. Claimant stated that, at times, both she and the insurance carrier have resisted a pain management clinic program, but that she would now like the opportunity to try the program. Carol Keel, claimant's mother, testified that she has been in regular contact with claimant ever since the injury occurred. She stated claimant had no problems with her right hand or arm before January, 1985, but since then she has never observed claimant carry anything with her right arm. Keel stated that claimant can hold a pencil and write for a short time, but that, in general, claimant does not use her right arm and carries it close to her body, a position which claimant has indicated is the most comfortable for her. Keel stated that, since the accident, both she and her husband have observed the claimant frequently and have never seen her use her right arm any differently than the use that has been represented at the hearing. Robert Thompson, claimant's husband, testified that, prior to the injury, claimant was unrestricted in her activities, but that, since the accident, she uses her right arm very little. He stated that she cannot move the arm above shoulder level and that she does not throw anything with it. He stated that she can lift about a pound and can write with it a little bit. He corroborated claimant's complaints regarding the location and nature of her pain and discomfort. Cecilia Blaskovich, the owner and manager of the private rehabilitation firm Medisult Ltd., and also a registered nurse and certified insurance rehabilitation specialist, testified at the hearing. Blaskovich was involved in arranging claimant's most recent return to work and in working with the employer to modify the job in an attempt to make it suitable for claimant. Steven Karabatsos, the plant manager at the Mason City Marshall & Swift laundry, testified. Karabatsos stated that he has been with the company 17 years in a variety of positions, having started in a part-time position and, through a series of promotions, moved through every job in the plant to his current position. Karabatsos testified that he was upset with the prior rehabilitation consultant, IntraCorp, because they did not have a representative present when claimant attempted to return to work in 1985. Karabatsos stated that they have tried to do everything that claimant, the rehabilitation consultant or her doctor have requested in adapting the job to one that claimant can perform. THOMPSON V. MARSHALL & SWIFT, INC. Page 9 Karabatsos stated that, when claimant initially returned to work, it was for two hours per day and that it is now at four hours per day. He stated that full-time work is available to claimant whenever she is ready for it. He stated that there is no plan to terminate claimant's employment. Linda Rezab, claimant's direct supervisor at the time of injury and presently, testified that she has observed claimant at work and that claimant has mentioned being uncomfortable, but that the company has tried to do whatever the doctors wanted in order to enable claimant to resume employment. Claimant stated that she was earning $4.00 per hour at the time of injury, but that she is now paid $4.20 per hour. APPLICABLE LAW AND ANALYSIS From the stipulations and the evidence, it is clear that claimant sustained serious injury on January 8, 1985 which arose out of and in the course of her employment. The first issue to be determined is claimant's entitlement to compensation for healing period as provided by Iowa Code section 85.34(l). The claimant's first actual, successful return to work was on July 17, 1987. In view of the fact that she essentially has little industrial use of her right hand, claimant will probably never be medically capable of returning to employment substantially similar to that in which she was engaged at the time of injury. Therefore, the healing period is terminated in this case by the time at which it was medically indicated that further significant improvement from the injury was not anticipated. The healing period generally terminates at the time when the attending physician determines that the employee has recovered as far as possible from the effects of the injury. Armstrong Tire & Rubber Co. v. Kubli, 312 N.W.2d 60, 65 (Iowa App. 1981). The healing period ends at the time that the doctor makes the determination that no further improvement is forthcoming. It is not judged by hindsight in looking back to the point at which improvement ceased to occur. Thomas v. William Knudson & Son, Inc., 349 N.W.2d 124, 126 (Iowa App. 1984). This case presents an extended healing period. Claimant was in various forms of therapy. In late 1985, Dr. Dobyns recommended stellate block therapy. The employer and insurance carrier hesitated for a considerable amount of time before allowing that therapy to occur. It was only after the nerve block therapy had proven unsuccessful and it was determined that a surgical sympathectomy was not advisable that the physicians finally concluded no further improvement in claimant's condition would be forthcoming. That determination was made, as shown by exhibit 15, on August 27, 1986. The healing period is therefore determined to run from the date of injury through August 27, 1986. It is also at that time that the first permanent partial impairment rating was given. The next issue to be determined is the nature and extent of claimant's permanent partial disability. The first issue to be addressed is whether the injury is limited to a scheduled member THOMPSON V. MARSHALL & SWIFT, INC. Page 10 or whether it extends into the body as a whole. The right of a worker to receive compensation for injuries sustained which arose out of and in the course of employment is statutory. The statute conferring this right can also fix the amount of compensation to be paid for different specific injuries, and the employee is not entitled to compensation except as provided by the statute. Soukup v. Shores Co., 222 Iowa 272, 268 N.W. 598 (1936). Where an injury is limited to a scheduled member, the loss is measured functionally, not industrially. Graves v. Eagle Iron Works, 331 N.W.2d 116 (1983). An injury to a scheduled member which, because of after-effects (or compensatory change), creates impairment to the body as a whole entitles claimant to industrial disability. Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660 (1961). Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943). Impairment of the shoulder is considered to be impairment of the body as a whole. Alm v. Morris Barick Cattle Co., 240 Iowa 1147, 38 N.W.2d 161 (1949). For injury resulting from trauma limited to a scheduled member, as occurred in this case, to be compensated industrially, the claimant must prove (1) that there is some physical injury, derangement or anatomical change that is not limited to a scheduled member, (2) the existence of physical impairment or functional disability that is not limited to the use of the scheduled member, and (3) that the changes were proximately caused by the injury to the scheduled member. Complaints of pain and discomfort, without corroborating, objective physical findings, are not sufficient. Lauhoff v. McIntosh, 395 N.W.2d 834 (Iowa 1986); Kellogg v. Shute and Lewis Coal Co., 256 Iowa 1257, 130 N.W. 2d 667 (1964 ); Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569 (1943); Schell v. Central Engineering Co., 232 Iowa 421, 426, 4 N.W.2d 657 (1946). The physicians in this case, with the possible exception of Dr. Walker, have all found that claimant's range of motion of her right shoulder is limited. Claimant has made complaints of pain, discomfort and limitation affecting her right shoulder. Dr. DeBartolo indicated that the shoulder complaints were part of the reflex sympathetic dystrophy with which claimant is afflicted. The Mayo Clinic indicated that claimant's right shoulder pain appeared to be myofascial in origin and that it should resolve with proper shoulder exercises and physical therapy, possibly in combination with some trigger point injections (exhibit 11). A neurology consultation by Keith Campbell, M.D., (found at the second page of exhibit 15), indicates that an examination of claimant had been incomplete because of her inability or unwillingness to move the shoulder. The record clearly shows some problem between claimant and Dr. Walker with regard to movement of her right shoulder. There are some unexplained variances in the range of motion studies which are found in the record. Dr. Hayreh, on June 10, 1985, found claimant's right shoulder motions to be full, free and painless (exhibit 6, page 1). Two weeks later, on June 24, 1985, Dr. Janda found her to have good motion of the right shoulder with slight pain. Three THOMPSON V. MARSHALL & SWIFT, INC. Page 11 days later, on June 27, 1985, right shoulder joint motions were painful and guarded (exhibit 1, page 15). On July 22, 1985, Dr. Janda found the motion for abduction, forward flexion, internal rotation and external rotation to be 93 degrees, 93 degrees, 65 degrees and 60 degrees, respectively (exhibit 1, page 16). On August 8, 1985, Dr. Janda found that claimant's shoulder was mobilizing with therapy (exhibit 1, page 17). On September 19, 1985, Dr. Dobyns found claimant's abduction and forward flexion to be 90 degrees each. He noted that, for internal rotation, she could move her hand to the lumbosacral area and that, for external rotation, she could move her hand to the back of her head (exhibit 7, pages 2 and 3). On October 29, 1985, Dr. Janda found abduction and forward flexion to be 90 degrees each and internal rotation and external rotation to be 45 degrees each (exhibit 1, page 20). When Dr. DeBartolo first examined claimant on January 14, 1986, abduction had reduced to only 60 degrees, but forward flexion had increased to 120 degrees. Internal rotation and external rotation were again characterized by putting the hand to the lumbosacral area and back of head, respectively (exhibit 10, page 2). Claimant was next evaluated by Dr. Verdeck on October 28, 1986. On that date, abduction was again 60 degrees. Forward flexion had decreased to only 60 degrees. Internal rotation had increased to 60 degrees, but external rotation had decreased to 15 degrees (exhibit 16). When claimant was evaluated by Dr. Walker on November 3, 1986, approximately five days later, Dr. Walker found forward flexion, internal rotation and external rotation to all be full and normal, but he found abduction to be 90 degrees. This represents an increase of 30 degrees abduction and remarkable other improvement from what Dr. Verdeck had found less than one week earlier. Dr. Walker indicated that it would be unusual to have limited abduction when the other motions were not limited (exhibit 17). Having observed claimant's appearance and demeanor at hearing, the variances in the range of motion studies for her shoulder and the indications from Dr. Walker, there is every reason to be skeptical of claimant's testimony regarding her shoulder complaints. Even Dr. Walker, however, opined that the shoulder is probably limited (exhibit 18). The record shows unexplainable results from nerve block therapy. The record contains a number of references to psychiatric problems and overlays. Ample basis exists to be suspicious of the credibility of claimant's complaints. Claimant has, nevertheless, been treated and evaluated by three eminently qualified orthopaedic surgeons, namely, Drs. DeBartolo, Dobyns and Verdeck as well as others having a lesser role in the case. Claimant has apparently convinced all of them of the validity of her shoulder complaints. There is not a single medical professional who has stated that, within a reasonable degree of medical certainty, the injuries do not extend into claimant's shoulder. Accordingly, testimony from Dr. DeBartolo, which attributes the shoulder complaints to the reflex sympathetic dystrophy, a diagnosis which has been embraced by essentially all the physicians, is accepted as being correct. Claimant's disability should therefore be evaluated industrially under the provisions of Iowa Code section 85. 34(2)(u). If claimant has an impairment to the body as a whole, an industrial disability has been sustained. Industrial disability was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 593, 258 N.W. 899, 902 (1935) as follows: "It is therefore plain THOMPSON V. MARSHALL & SWIFT, INC. Page 12 that the legislature intended the term 'disability' to mean 'industrial disability' or loss of earning capacity and not a mere 'functional disability, to be computed in the terms of percentages of the total physical and mental ability of a normal man.O Functional impairment is an element to be considered in determining industrial disability which is the reduction of earning capacity, but consideration must also be given to the injured employee's age, education, qualifications, experience and inability to engage in employment for which he is fitted. Olson v. Goodyear Service Stores, 255 Iowa 1112, 1121, 125 N.W.2d 251, 257 (1963). Post-injury earnings create a presumption of earning capacity commensurate with the earnings, but they are not synonymous with earning capacity. 2 Larson Workmen's Compensation Law, section 57.21 and section 57.31; Michael v. Harrison County, 34th Biennial Report 218 (1979). Industrial disability in a workers' compensation case is a concept that is quite similar to impairment of earning capacity in a tort case. Impairment of physical capacity creates an inference of lessened earning capacity. The basic element to be determined, however, is the reduction in value of the general earning capacity of the person rather than the loss of wages or earnings in a specific occupation. Holmquist v. Volkswagon of America, Inc., 261 N.W.2d 516 (Iowa App. 1977) 100 A.L.R.3d 143. THOMPSON V. MARSHALL & SWIFT, INC. Page 13 Claimant is young and intelligent, but her entire employment history has involved physical, rather than mental, exertion. The loss of use of a very substantial part of her dominant right hand is a severe loss, even though her current rate of earnings is higher than the rate which was in effect at the time of injury. Claimant does have a 30% functional impairment of the right upper extremity, which is equivalent to a 23% impairment of the body as a whole. She has a symptomatic reflex sympathetic dystrophy which produces pain and other problems in addition to the loss of range of motion. As a practical matter, she has essentially no practical, industrial use of her right hand and arm. Drs. Dobyns and DeBartolo have restricted her to one-armed work. When all the material factors of industrial disability are considered, it is found that claimant has a 50% permanent partial disability when the impairment of her right upper extremity, including the shoulder, and her left lower extremity are all considered. When considering the evidence, it becomes apparent that the recent injury to claimant's left leg was a temporary aggravation. It resolved promptly with conservative treatment. The permanent impairment of the leg, as found by Dr. Walker, is related to the high school injury and the resulting surgery which were clearly a more serious injury. The compensable value of a 10% permanent partial disability of a leg under section 85.34(2)(o) is 22 weeks of compensation. Clearly, the bulk of claimant's permanent partial disability resulted from the injury to her right hand. It is determined that the injury of January 8, 1985 produced a 45% permanent partial disability which requires the employer to pay 225 weeks of compensation. After deducting 22 weeks, which represents the compensable value of the preexisting leg impairment, the second injury fund is responsible for payment of three weeks of compensation for permanent partial disability. Second injury Fund v. Mich Coal Company, 274 N.W.2d 300, 304 (Iowa 1979); Fulton v. Jimmy Dean Meat Co., file number 755039, Appeal Decision, July 23, 1986. With regard to exhibit 24, the charges from Mayo Clinic in the amount of $712.70, the tests and examinations are clearly shown to be those that were performed as part of the procedures necessary to determine whether sympathectomy surgery was warranted. The reasonableness of the treatment is supported by exhibit 15 and the stipulations made by the parties. Defendants are therefore responsible for payment of the bill under the provisions of section 85.27 of the Iowa Code. Claimant, as a successful party, is entitled to recover costs in accordance with Division of Industrial Services Rule 343-4.33. Claimant is also entitled to recover interest on any amounts of weekly compensation that were not paid at the time the same came due under the provisions of Code sections 85.34(2) and 85.30. Teel v. McCord, 394 N.W.2d 405 (Iowa 1986). The fact that some degree of permanent disability resulted from the injury was obvious. FINDINGS OF FACT 1. On January 8, 1985, Cheryl A. Thompson was a resident of the state of Iowa, employed by Marshall & Swift, Inc. in Mason THOMPSON V. MARSHALL & SWIFT, INC. Page 14 City, Iowa. 2. Thompson was injured on January 8, 1985 when her right hand and forearm was pulled into an ironer machine. The initial trauma did not include the shoulder. 3. During the weeks and months that followed, claimant developed a reflex sympathetic dystrophy of the right upper extremity which, in turn, produced impairment in claimant's right shoulder. 4. Reflex sympathetic dystrophy is a disorder of the autonomic nervous system and, as indicated by Dr. DeBartolo, is not a problem that is limited to the right arm, but extends into the shoulder. 5. Following the injury, claimant was medically incapable of,performing work in employment substantially similar to the work she performed at the time of injury from January 8, 1985 until August 27, 1986 when her recovery and treatment had progressed to the point it was medically indicated that no additional treatment options remained and that further significant improvement from the injury was not anticipated. 6. Cheryl A. Thompson is a 23-year-old married woman who graduated from high school, but has no further formal education or vocational training. 7. Claimant was earning $4.00 per hour at the time of injury, but now earns $4.20 per hour. 8. All the medical care that claimant has received was reasonable treatment for the injury and the expenses charged for that treatment were fair and reasonable, including in particular the $712.70 charged by the Mayo Clinic as shown in exhibit 24. 9. Claimant has a 30% permanent functional impairment of the right upper extremity, including the shoulder, which is equivalent to a 23% permanent partial impairment of the whole person. 10. Claimant had a preexisting 10% permanent functional impairment of her left lower extremity prior to the time she commenced employment with Marshall & Swift, Inc. 11. Claimant currently has a 50% overall loss of earning capacity, of which 45% was produced by the injuries she sustained on January 8, 1985. The other 5% is related to the preexisting impairment of her left leg. CONCLUSIONS OF LAW 1. This agency has jurisdiction of the subject matter of this proceeding and its parties. 2. The permanent partial disability resulting from the injuries claimant sustained on January 8, 1985 extends into the body as a whole and her disability should be compensated industrially under the provisions of section 85.34(2)(u) rather THOMPSON V. MARSHALL & SWIFT, INC. Page 15 than as a disability to a scheduled member under section 85.34(2)(m). 3. Claimant has a 50% permanent partial disability when the same is evaluated industrially. 4. Claimant has a 45% industrial disability that was proximately caused by the injuries she sustained on January 8, 1985. The other 5% was proximately caused by the high school injury to her left knee. 5. The employer and its insurance carrier are responsible for payment of 225 weeks of compensation for permanent partial disability, less credit for the 75 weeks previously paid. 6. The Second Injury Fund of Iowa is responsible for payment of three weeks of compensation for permanent partial disability. 7. The employer and insurance carrier are responsible for payment of healing period for 85 2/7 weeks of compensation commencing January 8, 1985 and ending August 27, 1986. 8. The employer and insurance carrier are responsible for payment of claimant's remaining unpaid medical expenses at the Mayo Clinic in the amount of $712.70. ORDER IT IS THEREFORE ORDERED that the employer and insurance carrier pay claimant eighty-five and two-sevenths (85 2/7) weeks of compensation for healing period at the stipulated rate of one hundred twelve and 02/100 dollars ($112.02) per week commencing January 8, 1985. IT IS FURTHER ORDERED that the employer and insurance carrier pay claimant two hundred twenty-five (225) weeks of compensation for payment of permanent partial disability at the stipulated rate of one hundred twelve and 02/100 dollars ($112.02) per week payable commencing August 28, 1986. IT IS FURTHER ORDERED that the employer and insurance carrier receive full credit for the fifty-two (52) weeks of healing period compensation and seventy-five (75) weeks of permanent partial disability compensation that they have previously paid. IT IS FURTHER ORDERED that all past due, accrued amounts be paid to claimant in a lump sum together with interest at the rate of ten percent (10%) per annum computed from the date each payment came due until the date of actual payment in accordance with section 85.30 of the Iowa Code. IT IS FURTHER ORDERED that the Second Injury Fund of Iowa pay claimant three (3) weeks of compensation for permanent partial disability at the stipulated rate of one hundred twelve and 02/100 dollars ($112.02) per week payable commencing at the time the employer completes making the permanent partial disability compensation payments provided in this order, which THOMPSON V. MARSHALL & SWIFT, INC. Page 16 date is computed to be December 20, 1990. IT IS FURTHER ORDERED that the employer and insurance carrier pay claimant's medical expense with the Mayo Clinic in the amount of seven hundred twelve and 70/100 dollars ($712.70). IT IS FURTHER ORDERED that the employer and insurance carrier pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. IT IS FURTHER ORDERED that the employer and insurance carrier file Claim Activity Reports as requested by this agency pursuant to Division of Industrial Services Rule 343-3.1. Signed and filed this 11th day of April, 1988. MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Robert S. Kinsey III Attorney at Law 214 North Adams P.O. Box 679 Mason City, Iowa 50401 Mr. Barry Moranville Attorney at Law 974 73rd Street, Suite 16 Des Moines, Iowa 50312 Mr. Robert D. Wilson Assistant Attorney General Tort Claims Division Hoover State Office Building Des Moines, Iowa 50319 1802, 1803, 1803.1, 3202 Filed April 11, 1988 MICHAEL G. TRIER BEFORE THE IOWA INDUSTRIAL COMMISSIONER CHERYL A. THOMPSON, Claimant, vs. MARSHALL & SWIFT, INC., File No. 784394 Employer, A R B I T R A T I 0 N and D E C I S I 0 N U. S. INSURANCE GROUP, Insurance Carrier, and SECOND INJURY FUND OF IOWA, Defendants. 1802, 1803, 1803.1, 3202 Claimant's right hand and arm was pulled into an ironing machine at a commercial laundry. After medical treatment had ended, she was rated as having a 30% permanent functional impairment. Her condition included a reflex sympathetic dystrophy. All the employer-selected physicians indicated that the impairment included impairment of the shoulder while claimant's own independent section 85.39 physician seemed to question whether there was any impairment of the shoulder. The only explanation for the shoulder impairment that was given, since the shoulder was not injured in the original trauma, was that it was produced by the reflex sympathetic dystrophy. It was held that the injury extended into the body as a whole and disability was determined industrially. The claimant had an extended healing period while diagnostic tests were being conducted to determine whether or not a sympathectomy surgery should be performed. The healing period was held to end at the point when the physicians determined that it should not be performed, that no further aggressive treatment was recommended and an impairment rating was assigned. The Second Injury Fund of Iowa was held responsible for payment of three weeks of compensation. The claimant had a 10% THOMPSON V. MARSHALL & SWIFT, INC. Page 2 preexisting impairment of the left leg which was found to be responsible for a five percent industrial disability. The employer was held responsible for a 45% industrial disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ FRANK E. RIXEN, Claimant, File No. 784536 VS. RALSTON PURINA CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Frank E. Rixen, claimant, against the Ralston Purina Company (Ralston), employer, and the Aetna Casualty and Surety Company, insurance carrier, for benefits as a result of an alleged injury on July 25, 1984. A hearing was held in Davenport, Iowa, on December 18, 1986 and the case was submitted on that date. The record consists of the testimony of claimant and James D. Dannels; claimant's exhibits 1 through 7; and defendants' exhibits A through T. Neither party filed a brief. The parties stipulated that claimant's weekly rate of compensation is $269.08; that permanent partial disability benefits would commence on December 29, 1984, if awarded; and that the contested medical bills are reasonable in amount. ISSUES The contested issues are: 1) Whether claimant received an injury that arose out of and in the course of his employment; 2) Whether there is a causal relationship between claimant's alleged injury and his asserted disability; 3) Nature and extent of disability; and 4) Whether claimant is entitled to benefits pursuant to Iowa Code section 85.27 and, if so, the extent of those benefits. SUMMARY OF THE EVIDENCE Claimant testified that he is 49 years old and is currently employed by Ralston as a lab monitor. Claimant gathers samples and checks them as a lab monitor. He has worked for Ralston for sixteen years. Claimant testified that on July 25, 1984, he twisted his right knee while standing at a counter at Ralston. At the time he twisted his right knee, he was turning to throw away samples into a wastebasket. His knee popped at the time of this injury. He told a supervisor about this incident and worked until 8:00 p.m. on the date of injury. Subsequently, a company doctor looked at the knee. Claimant saw J. E. Ives, M.D., about a week later and he treated with Dr. Ives for about a month. Claimant was working during this time period. In the fall of 1984, claimant sought treatment from Ralph H. Congdon, M.D. He had surgery on November 28, 1984 and returned to work thirty-five days later. Claimant stated that he was unable to recall any restrictions being imposed on him at the time he returned to work. Claimant testified that he had no right knee problem prior to July 1984. However, claimant acknowledged a left knee problem prior to July 1984. In 1978, Richard L. Kreiter, M.D., did surgery on claimant's left knee. Claimant testified that in 1983 his left knee bothered him and as result he went to Iowa City for treatment. His back was also bothering him at this time. Currently, his right knee has a burning sensation and he "walks with a little bit of a limp yet." Because of his right knee, he cannot squat or bend down. If he tried to squat, "he would fall in a heap." On cross-examination, claimant testified that he had been a sampler for about a year prior to the incident of July 25, 1984. His ingredient sampling job had been eliminated. On July 25, 1984, claimant was a lab monitor and had the responsibility for gathering samples and checking them. On cross-examination, claimant acknowledged that in September 1983, he stated to Robert Karr, M.D., that he had dull pain in both knees. See exhibit H, paragraph 2. It was pointed out to claimant that exhibit L documents that claimant had left knee surgery in 1983, rather than 1978. Claimant testified on cross-examination, that at the time he injured his right knee on July 25, 1984, he was turning to his left. Claimant stated that his weight was on his right leg. Claimant stated that "his knee gave out and then he lost his balance." He also stated that "his right knee had not been unstable prior to July 25, 1984." On recross-examination, claimant acknowledged a "1983 tree incident" at his home. James D. Dannels testified that he is a safety and training person for Ralston and has worked in this capacity for nine years. Mr. Dannels has worked for Ralston for a total of seventeen years. Dannels testified that in 1983 claimant had a right knee problem. Dannels testified on cross-examination that in August 1983 claimant was sampling ingredients. At that time, claimant was concerned about standing on cement floors and walking. These activities were part of his job. Dannels contacted Dr. Keister and described claimant's job to the doctor. Dr. Keister said that claimant had weak knees, but he told Dannels claimant could do his job. In 1983, walking and climbing RIXEN V. RALSTON PURINA CO. Page 3 was part of claimant's job. In 1983, Dr. Keister restricted claimant to soft shoes and no prolonged standing. See restrictions contained in claimant's exhibit 1. Dannels testified that these restrictions are still in effect. Dannels has talked with claimant's wife about claimant's knees. Claimant's wife said to Dannels that "claimant's knees give out." This comment was made prior to July 1984. Exhibit 2 (dated December 12, 1985) is authored by Dr. Kreiter and reads: I am writing in regard to information you requested on Frank Rixen. In review of my old records, I see that on only one occasion did he complain of some discomfort in his right knee. At that time he had been working long hours and had developed an aching along the medial aspects of his knees for which he took 10 to 12 aspirin. I did obtain x-rays of the knees at that time, standing, and his joint compartments were well maintained. As you know he did undergo an arthroscopy of the left knee in 1983 but seemed to function reasonably well in regard to the right knee until his accident or twist in July of 1984. I certainly cannot give any impairment rating to the knee prior to that date since it was functional and really had no impairment on a physical evaluation. He does have permanency now since he had a partial meniscectomy and that would probably give him a 5% permanent disability to the leg because of that surgery. Exhibit 3 (dated February 15, 1985) is authored by Dr. Congdon and reads in part: I think this patient's type of mechanism of injury best be described as an event that caused the patient to become symptomatic to the point of intolerability in a condition that was previously tolerable. I do believe he tore his meniscus on the 25th of July 1984 but also it was probably not a normal meniscus that finally gave way. Exhibit H (dated September 6, 1983) is authored by Robert Karr, M.D., and reads in part: Frank Rixen was seen in the Rheumatology Clinic on August 31, 1983, with a diagnosis of chronic low back pain, etiology unknown. This 45 year old male has a several year history of gradual onset of dull, aching pain in both knees, both shoulders and low back. The pain is always exacerbated with activity and relieved with rest. APPLICABLE LAW AND ANALYSIS Claimant has the burden of proving by a preponderance of the evidence that he received an injury on July 25, 1984 which arose out of and in the course of his employment. McDowell v. Town of RIXEN V. RALSTON PURINA CO. Page 4 Clarksville, 241 N.W.2d 904 (Iowa 1976); Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 (1967). The claimant has the burden of proving by a preponderance of the evidence that the injury of July 25, 1984 is causally related to the disability on which he now bases his claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). While a claimant is not entitled to compensation for the results of a preexisting injury or disease, the mere existence at the time of a subsequent injury is not a defense. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-761 (1956). If the claimant had a preexisting condition or disability that is aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815 The Iowa Supreme Court cites, apparently with approval, the C.J.S. statement that the aggravation should be material if it is to be compensable. Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's Compensation 555(17)a. An employer takes an employee subject to any active or dormant health impairments, and a work connected injury which more than slightly aggravates the condition is considered to be a personal injury. Ziegler v. United States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591 (1960), and cases cited. The following discussion will assume that claimant had trouble with both of his knees prior to July 25, 1984. In resolving this case, I am presented with a fact question that depends in part on the resolution of the question of whether claimant is a credible witness. There will be a finding that claimant is a credible witness. The evidence in this case, both lay and expert, support a finding that claimant materially aggravated the condition of his right knee at work on July 25, 1984. Prior to July 25, 1984, claimant's right knee may not have been in perfect condition, but he was able to work despite its imperfection. Claimant's testimony that he injured his right knee while twisting on July 25, 1984 is believed. Claimant has carried his burden of proof on the causation issues in this case. Claimant is entitled to healing period benefits from July 25, 1984 for the time periods he was off work. He is entitled to eleven weeks of permanent partial disability benefits based on the five percent rating of record. Defendants also owe the contested medical bills as claimant has carried his burden on the causation issues in this case. Any authorization argument fails because defendants did not admit this was a compensable injury, RIXEN V. RALSTON PURINA CO. Page 5 and then assert their statutory right to control the medical care given. FINDINGS OF FACT 1. On July 25, 1984, claimant was working as a lab monitor for Ralston and in this capacity gathered and tested samples. 2. On July 25, 1984, claimant injured his right knee while standing at a counter at work when turning or twisting to throw samples into a wastebasket. 3. The injury that claimant sustained on July 25, 1984 materially aggravated his right knee condition; his right knee was not in perfect condition prior to July 25, 1984. 4. Claimant's injury of July 25, 1984 resulted in five percent (5%) permanent partial impairment to his right lower extremity. 5. Claimant is a credible witness. 6. Claimant's stipulated weekly rate of compensation is two hundred sixty-nine and 08/100 dollars ($269.08). CONCLUSIONS OF LAW 1. Claimant established by a preponderance of the evidence that he materially aggravated his right knee condition on July 25, 1984 while working for Ralston. 2. Claimant established entitlement to weekly benefits and medical bills as a result of his right knee injury. ORDER IT IS THEREFORE ORDERED: That claimant be paid the healing period and permanent partial disability benefits described above with permanent partial disability commencing on December 29, 1984; all weekly benefits shall be paid at a rate of two hundred sixty-nine and 08/100 dollars ($269.08). That defendants pay the contested medical bills. That defendants pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. That defendants be given credit for benefits already paid to claimant. That defendants pay the costs of this action, pursuant to Division of Industrial Services Rule 343-4.33, formerly Industrial Commissioner Rule 500-4-33. That defendants shall file claim activity reports, pursuant to Division of Industrial Services Rule 343-3.1(2), formerly RIXEN V. RALSTON PURINA CO. Page 6 Industrial Commissioner Rule 500-3.1(2), as requested by the agency. Signed and filed this 9th day of February,1987. T. J. McSWEENEY DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Michael W. Liebbe Attorney at Law P.O. Box 339 116 East 6th Street Davenport, Iowa 52805 Mr. Larry L. Shepler Attorney at Law 600 Union Arcade Bldg. 111 East Third Street Davenport, Iowa 52801-1550 1402.40; 1802; 1803 Filed 2-9-87 T. J. McSweeney BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ FRANK E. RIXEN, Claimant, File No. 784536 VS. RALSTON PURINA CO., A R B I T R A T I 0 N Employer, D E C I S I 0 N and AETNA CASUALTY & SURETY COMPANY, Insurance Carrier, Defendants. _________________________________________________________________ 1402.40; 1802; 1803 Held in arbitration that claimant materially aggravated a right knee problem. Healing period and permanent partial disability benefits were awarded, and defendants were ordered to pay some medical bills. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ERIC PETERSON, Claimant, File No. 784998 VS. A R B I T R A T I 0 N IOWA STATE UNIVERSITY, D E C I S I 0 N Employer, and STATE OF IOWA Insurance Carrier, Defendants. _________________________________________________________________ _ STATEMENT OF THE CASE This is a proceeding in arbitration brought by Robert Abbott, Jr., and Eric Peterson, claimants, against Iowa State University, employer and State of Iowa, insurance carrier, to recover benefits under the Iowa Workers' Compensation Act as a result of an injury occurring December 27, 1984. This matter came on for hearing before the undersigned deputy industrial commissioner October 9, 1987, and was considered fully submitted at the close of the hearing. The record in this case consists of the testimony of the claimants and Eugene S. Lund, Jr., and joint exhibits A through L, inclusive. ISSUES Pursuant to the prehearing reports submitted and approved October 9, 1987, the issues that remain for determination are whether or not the claimants' injuries are the cause of any permanent disability and, if so, the nature and extent of the disability. FACTS PRESENTED Claimant, Robert Abbott, Jr., testified he has been employed by Iowa State University at the power plant for about nine and one-half years as an electrician. On December 27, 1984, he explained he was working on a volt switch gear when it exploded causing burns to his face, arms, neck and left thigh. He was hospitalized until January 4, 1985, and remained off work until he was released to return February 25, 1985. He admitted to being paid workers' compensation benefits during this period of time. The only medical restrictions placed on him at the time of his release to return to work was that he was to keep the wounds as clean as possible and avoid dust, dirt, and fly ash until the wounds were completely healed. Claimant returned to his regular job and shortly thereafter was promoted to a high voltage electrician. Claimant (Abbott) testified to scarring on his left and right arms, and a slight discoloration around the temples of his forehead. He presents that he is now sensitive to heat, cold and sun and that his skin at the places of scarring is sensitive to irritation, particularly when the fly ash in the plant mixes with his sweat. Claimant admitted to no lack of strength in his arms, that he has missed no further work as a result of his burns since he returned and that he has been able to perform all the responsibilities of his job. Claimant testified his skin now has a susceptibility to blemishes and that he has an occasional recurring nightmare of a ball of fire exploding. Claimant revealed he has also engaged in farming and maintains that the because of his sensitivity to cold and sun be has had to somewhat curtail his farming activities. However, claimant acknowledged that the state of the farming economy has also impacted his agricultural endeavors. Claimant admitted he fully intends to continue in his employment with Iowa State University and that physically he can do all that he is supposed to do. Claimant Eric Peterson testified he was involved in the same accident as Robert Abbott but was burned only on the left side of his face and the left arm and hand. He was hospitalized until December 31, 1984, and released to return to work March 4, 1985, with the same restrictions as Robert Abbott. He returned to his regular job but advised his supervisor that he no longer wanted to work on high voltage electricity because of a lack of training. Claimant (Peterson) presented scarring on his left hand and knuckles with no scarring on his face. He believes there is a loss of strength in his left hand and that he cannot grip things with it as he once could. Claimant identified he is right hand dominant. He, too, explained sensitivities to heat, cold, and sun, with some irritations from the fly ash and other particles in the air at the power plant. Claimant acknowledged he has not missed any work nor seen any physician since he returned after his injury. He explained that while he did not feel his scarring prevented him from doing his job, he believes it makes his job more difficult, but acknowledged be, too, intends to continue working at the Iowa State University power plant. Eugene Lund, Jr., testified he is the electricity maintenance and controls manager at the power plant and was the supervisor of both claimants at the time of the accident. He attested to the fact that neither claimant had missed any work as a result of their injuries since their return, both are doing their prior jobs and duties and that neither have complained of any inability to do the work assigned. He recalled complaints when both claimants first returned to work about fly ash irritations, beat and cold, but could not recall any recent complaints of the same nature. Mr. Lund did not dispute both claimants' allegations of skin irritations from the fly ash, explaining fly ash contains sulphur which, when mixed with a liquid such as sweat, will cause a burning sensation. He acknowledged that he has suffered from it also. Mr. Lund expressed no dissatisfaction with either claimants' job performance. Dr. Ronald S. Bergman saw both claimants for evaluation in February 1987. Of claimant Robert Abbott, Jr., he wrote: "I can not see any evidence of post burn of the face, however he does have scarring of the left arm. As far as functional impairment, he does not have any." (Joint Exhibit I) Of claimant Eric PETERSON V. IOWA STATE UNIVERSITY Page 3 Peterson, he wrote: "No evidence of any scarring of the facial areas. There is evidence of scars on the left arm and dorsum of the hand. However, they have healed excellently, and there is no impairment of any range of motion. I do not feel that Mr. Peterson has sustained any permanent injury." (Jt. Ex. D) APPLICABLE LAW An employee is entitled to compensation for any and all personal injuries which arise out of and in the course of the employment. Section 85.3(l). The claimants have the burden of proving by a preponderance of the evidence that the injuries of December 27, 1984 are causally related to the disabilities on which they now base their claim. Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 (1965). Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945). A possibility is insufficient; a probability is necessary. Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 (1955). The question of causal connection is essentially within the domain of expert testimony. Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960). The expert medical evidence must be considered with all other evidence introduced bearing on the causal connection. Burt, 247 Iowa 691, 73 N.W.2d 732. The opinion of experts need not be couched in definite, positive or unequivocal language. Sondaq v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). However, the expert opinion may be accepted or rejected, in whole or in part, by the trier of fact. Id. at 907. Further, the weight to be given to such an opinion is for the finder of fact, and that may be affected by the completeness of the premise given the expert and other surrounding circumstances. Bodish, 257 Iowa 516, 133 N.W.2d 867. See also Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.7d 128 (1967). ANALYSIS Of first concern is the determination of whether or not claimants' injuries are the cause of any permanent disability. It is claimants' contention that, as a result of the injuries giving rise to the claim, each claimant has sustained a permanent partial disability and is entitled to an industrial disability award in the case. It is claimants' argument that, because of the injury sustained December 27, 1984, they have been medically restricted in a number of job capacities and industrially impaired. Defendants, on the other hand, allege that claimants have sustained no permanent impairment or industrial disability as a result of the work injuries. Defendants argue that both claimants have been paid the entire amount of the healing period benefits during the time in which they recuperated from their injuries and that they are not entitled to anything further in this proceeding. It is not disputed that both claimants went through a traumatic ordeal. However, both have returned to work in their regular jobs and have been able to perform those jobs. The employer, likewise, has not been dissatisfied with either's job PETERSON V. IOWA STATE UNIVERSITY Page 4 performance and has noted no inability or difficulty on the part of either claimant to carry out their responsibilities. Neither claimant has had to seek any further medical treatment nor have they missed any further work as a result of the accident. While both have asserted a sensitivity to beat, cold, and sun, it has not been shown that this has, in any way, impaired their ability to work. Claimant Robert Abbott, Jr., asserts he has had to curtail his farming. However, in light of his own admissions concerning the farm economy, it is difficult, at best, to attribute this curtailment to the accident or injuries. Claimant Eric Peterson does not want to work on high voltage electricity. He candidly attributes this, however, to his lack of training not to his accident. Both claimants are electricians by training and qualification. The record fails to establish their injuries, in any way, have interfered with their ability to continue in this vocation. Indeed, both completely admit to an intention to remain in their employment at the power plant. Both claimants have scarring of the skin. By observation, claimant Peterson's scarring on his left hand and knuckles is extensive while claimant Abbott's is barely noticeable particularly on his face. Claimants' own evaluating physician could not rate either as having any functional impairment. While claimants argue they have been medically restricted in a number of job capacities, no such evidence exists. Claimants were released to return to work with only the restrictions that they keep the affected areas as clean as possible until healing was complete. No further restrictions are found in the evidence. Both claimants attest to a sensitivity to the fly ash particularly when it mixes with sweat and causes a burning sensation. However, Eugene Lund, who did not sustain the injuries, attests to the same burning sensation from the fly ash. On review of the evidence, the question of whether or not the injuries have caused any permanent disability to either claimant must be answered in the negative. Neither claimant has sustained an injury which has permanently affected their ability to perform or obtain work compatible with their qualifications or training. Claimants, therefore, will take nothing from this proceeding having already been paid all benefits to which they are entitled. FINDINGS OF FACT THEREFORE, based on the evidence presented, the following facts are found: 1. Claimant sustained an injury which arose out of and in the course of his employment when a volt switch gear exploded causing burns to the left side of his face and left arm and hand. 2. Claimant was hospitalized and under medical care until released to return to work. 3. Claimant was paid temporary total disability during his period of recuperation. PETERSON V. IOWA STATE UNIVERSITY Page 5 4. Claimant has returned to work in his regular job, has missed no further work and has sought no further medical. attention as a result of his injury. 5. Claimant has been able to satisfactorily perform all of his job responsibilities. 6. Claimant is an electrician by trade and his injury has not affected his ability to pursue this vocation. 7. Claimant was evaluated by Dr. Ronald S. Bergman and was found to have no impairment as a result of the injury. 8. Claimant has sustained no permanent disability as a result of his injury. CONCLUSIONS OF LAW WHEREFORE, based on the principles of law previously stated, the following conclusion of law is made: Claimant has failed to establish his injury of December 27, 1984, has caused any permanent disability. ORDER THEREFORE, IT IS ORDERED: Claimant takes nothing from this proceeding having been paid all benefits to which he is entitled. Costs of this action are assessed against the defendants pursuant to the Division of Industrial Services Pule 343-4.33. Signed and filed this 10th day of November, 1987. DEBORAH A. DUBIK DEPUTY INDUSTRIAL COMMISSIONER Copies to: Mr. Thomas M. Werner Attorney at Law 1150 Polk Boulevard Des Moines, Iowa 50312 Mr. Charles S. Lavorato Assistant Attorney General Hoover Building LOCAL 1800; 1803 Filed 1 1-10-87 Deborah A. Dubik BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ ERIC PETERSON, Claimant, File No. 784998 VS. A R B I T R A T I 0 N IOWA STATE UNIVERSITY, D E C I S I 0 N Employer, and STATE OF IOWA, Insurance Carrier, Defendants. _________________________________________________________________ 1800; 1803 Claimant was injured at work when a volt switch gear exploded and caused burns. Following hospitalization and home recuperation, he was released to return to work with essentially no medical restrictions. He returned to his regular job, has been able to perform all job responsibilities satisfactorily, missed no further work, and sought no further medical attention as a result of the injury. The injury did not hamper his ability to work as an electrician. Held claimant failed to establish his injury caused any permanent disability. BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ LARRY L. SPERRY, Claimant, File No. 785108 VS. A P P E A L D & C EXPRESS, INC., D E C I S I 0 N Employer, Defendant. _________________________________________________________________ STATEMENT OF THE CASE Defendant appeals from an arbitration decision awarding permanent partial disability benefits of 35 percent of his right upper extremity. The record on appeal consists of the transcript of the arbitration hearing claimant's exhibit 1, and joint exhibits 1 through 4. Both parties filed briefs on appeal. ISSUES The issues on appeal are whether claimant was an employee of the defendant on August 25, 1983 and the appropriate rate of weekly compensation, if disability benefits are awarded. REVIEW OF THE EVIDENCE The arbitration decision adequately and accurately reflects the pertinent evidence and it will not be totally reiterated herein. Claimant started working for defendant under the terms of a written agreement dated April 1, 1983. On August 25, 1983 claimant dislocated his right elbow and fractured his right wrist while loading a truck with steel for defendant at defendant's terminal. Defendant was engaged in interstate trucking and under the agreement claimant was responsible for hauling loads for the defendant. The claimant furnished a tractor and trailer for this purpose and also drove the equipment. There were occasions when claimant would have someone else drive the equipment and compensate the driver. The agreement provided that the equipment was in the exclusive possession, control, and use of the defendant. Signs with defendant's name were placed on both sides of the equipment. Claimant would call defendant each Sunday night to learn if loads were available during the coming week. When loads were available the defendant informed the driver of the type of freight to be hauled and the destination where the freight was to be taken. A load had to be picked up prior to a certain time and delivered by a time usually specified by defendant. Claimant was required to call defendant daily to provide information on his location. Defendant would provide the paperwork for each load, carry insurance on the cargo and liability insurance, and compute fuel tax owed by a driver. Claimant paid for collision coverage on his equipment. Defendant required claimant to maintain the equipment to meet safety requirements and to maintain accurate log books. Under the agreement claimant was responsible for health and workers' compensation insurance. Claimant could haul freight for another company under a trip lease when returning to Iowa after hauling freight for defendant if defendant had no freight available. On one occasion defendant denied permission to claimant to take a trip lease back to Iowa. Claimant was paid 78 percent of the gross revenues charged for the freight he hauled for the defendant. The average weekly wage figure for the 78 percent of the gross revenues charged is $955, less deductions for fees and permits. Claimant's expenses came out of this 78 percent. Those expenses included fuel, maintenance, and compensation to the other drivers. The compensation to the other drivers is 25 percent of the 78 percent paid to claimant. Defendant would on occasion advance money so that fuel could be purchased and then deduct the amount advanced from the next check. There were no social security or income taxes withheld from the 78 percent paid to claimant and he designated himself as self-employed on his tax return. APPLICABLE LAW The citations of law in the arbitration decision are appropriate to the issues and evidence. ANALYSIS Some of the relevant factors weigh in favor of an employer-employee relationship while others indicate an independent contractor status for claimant. The greater weight of evidence indicates an employer-employee relationship and claimant has made a prima facie showing that the relationship exists. Defendant exercises considerable control over the details of claimant's work and driving and defendant has the right to exercise this control. Defendant argues that the relationship is one of an independent contractor but has not produced sufficient evidence to support that contention. When all factors are considered the instant case is very similar to Daggett v. Nebraska Eastern Exp., Inc., 252 Iowa 341, 107 N.W.2d 102 (1961) and the conclusion reached in that case is appropriate in the instant case. Defendant's attempt to distinguish that case from the instant case is not persuasive. After weighing all relevant factors, it is concluded that the deputy was correct in finding that claimant was an employee of defendant on August 25, 1983. The appropriate rate in this case is computed by utilizing claimant's gross average earnings of $955 per week for the 13 weeks prior to his injury. This figure is used despite the fact that claimant paid for maintenance and other expenses out of this weekly amount. The statutory scheme of rate calculation is specific and it was designed to ease the process of calculation. It would be an impossible task to determine rate if employee paid expenses were taken into account. Taking into account such SPERRY V. D & C EXPRESS, INC. Page 3 expenses would lead to absurd results. For example, in this case, claimant would not be entitled to any rate of compensation despite the fact he was gainfully employed at the time of his injury as he had a net operating loss for tax year 1983. FINDINGS OF FACT 1. Claimant owned a truck and a trailer in 1983. 2. On April 1, 1983 claimant and defendant signed what was styled a lease agreement, with the term of the agreement commencing on that date and ending on December 31, 1983, and under this arrangement claimant used his equipment to haul for defendant. 3. Claimant called defendant every Sunday night commencing on April 1, 1983 to determine whether defendant had any cargo for him to haul. 4. Claimant could decline to accept hauls or cargo from defendant but doing so could have resulted in termination of the relationship between claimant and defendant. 5. Claimant had to pick up loads at defendant's Wilton terminal during business hours. 6. Claimant operated his tractor/trailer under the authority of defendant's ICC permit. 7. Claimant was told by defendant about 50 percent of the time, when he was to arrive at his destinations. 8. Claimant was required by defendant in accordance with federal and state law, to maintain his equipment so that it was reasonably safe; claimant maintained his equipment at his own expense. 9. Claimant was required by defendant, in accordance with ICC regulations, to keep an accurate log book. 10. Claimant was paid 78 percent of the gross revenue from his hauls for defendant. 11. On at least one occasion defendant denied permission to claimant to take a trip lease back to Iowa from a destination, after he had delivered cargo for the defendant. 12. Claimant was required to pick up cargo from defendant prior to a certain time. 13. Defendant provided claimant with the paperwork for his loads, when he hauled for the defendant. 14. Defendant handled the licensing and permits for claimant's truck. 15. Defendant provided the liability insurance coverage for claimant's loads with defendant and the liability coverage for "trip leases." SPERRY V. D & C EXPRESS, INC. Page 4 16. Defendant computed the amount of fuel tax, if any, that claimant owed because of his travel in various states hauling defendant's cargo. 17. Defendant had claimant call in on an 800 phone number when he reached a destination in order for it to be determined if claimant should bring back a load for defendant. 18. Defendant required that claimant call in daily. 19. Claimant picked up a paycheck every Friday from defendant which had the word "wage" thereon. 20. Defendant paid for claimant's medical treatment at a clinic and hospital after his injury on August 25, 1983. 21. Defendant's name was displayed on claimant's truck in accordance with ICC requirements. 22. Defendant would loan drivers, such as claimant, money in order for fuel to be purchased and then deduct this amount from the weekly paycheck. 23. Claimant was an employee of defendant on August 25, 1983. 24. Claimant's gross earnings at defendant averaged $955.00 per week for the 13 week period prior to August 25, 1983. 25. On August 25, 1983, claimant supported a spouse and three children. 26. On August 25, 1983 claimant fell while working as an employee for defendant injuring his right elbow and wrist. 27. F. Dale Wilson, M.D., has given claimant a 35 percent permanent partial impairment rating for claimant's right upper extremity and it is so found. 28. Claimant reached maximum healing on December 1, 1983. CONCLUSIONS OF LAW The greater weight of evidence indicates that on August 25, 1983 claimant was an employee of defendant. Claimant sustained an injury on August 25, 1983 that arose out of and in the course of his employment with defendant. As a result of the injury claimant has a 35 percent disability in the right upper extremity. Claimant has established entitlement to healing period benefits from August 25, 1983 through November 30, 1983, except for the days that he worked, and entitlement to 87.5 weeks of permanent partial disability benefits commencing on December 1, 1983. Claimant's weekly rate of compensation is determined to be SPERRY V. D & C EXPRESS, INC. Page 5 $520.58 for healing period benefits and $518.00 for permanent partial disability benefits. WHEREFORE, the decision of the deputy is affirmed. ORDER THEREFORE, it is ordered: That defendant pay weekly disability benefits for healing period from August 25, 1983 through November 30, 1983 except for the days claimant worked at a rate of five hundred twenty and 58/100 dollars ($520.58) and eighty-seven and one-half (87 1/2) weeks of permanent partial disability benefits commencing on December 1, 1983 at a rate of five hundred eighteen dollars ($518.00). That defendant pay accrued benefits in a lump sum and pay interest pursuant to section 85.30, The Code. That defendant pay the costs of this action pursuant to Division of Industrial Services Rule 343-4.33. That defendant shall file claim activity reports, pursuant to Division of Industrial Services Rule 343-3.1(2), as requested by the agency. That defendant shall file a first report of injury as required by law. Signed and filed this 10th day of December, 1987. DAVID E. LINQUIST INDUSTRIAL COMMISSIONER Copies To: Mr. Allan Hartsock Attorney at Law Fourth Floor, Rock Island Bank Bldg. P.O. Box 428 Rock Island, Illinois 61201 Mr. David Scieszinski Attorney at Law P.O. Box 394 Wilton, Iowa 52778 1403.30-1402.10-2001 2002-3001 Filed December 10, 1987 DAVID E. LINQUIST BEFORE THE IOWA INDUSTRIAL COMMISSIONER _________________________________________________________________ LARRY L. SPERRY, Claimant, File No. 785108 VS. A P P E A L D & C EXPRESS, INC., D E C I S I 0 N Employer, Defendant. _________________________________________________________________ 1403.30 - 2002 Defendant failed to establish that claimant was an independent contractor. 1402.10 - 2001 Claimant was found to be an employee of defendant. 3001 Claimant's gross weekly earnings were based upon the total amount paid to him by defendant and claimant's expenses were not deducted from that amount. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY L. SPERRY, : : Claimant, : File No. 785108 : vs. : R E M A N D : D & C EXPRESS, : D E C I S I O N : Employer, : Defendant. : ____________________________________________________________ introduction This case has been remanded to the undersigned for the purpose of determining the correct rate of compensation to be paid in this case. Section 85.36 of The Code presents a number of alternatives which can be used in order to compute the correct rate of compensation. Most are based upon actual earnings, but subsection 8 permits the application of usual earnings where actual earnings cannot be ascertained. The record made in this case does not contain precise current information which would permit an accurate determination of the claimant's actual wages or earnings. From the record, it is clear that claimant's receipts from D & C Express for the 13 weeks preceding the injury averaged $955.00 per week (transcript, page 26). Those receipts represent 78 percent of the gross revenues received by D & C Express for the loads hauled by Sperry (transcript, pages 57 and 58). While claimant paid expenses for fuel, repairs, maintenance and certain other expenses from his share of the gross revenues, no evidence of the amount of those actual expenses appears in the record. It is also clear that 25 percent of the gross revenues is a usual wage paid to drivers (transcript, pages 65, 66 & 68). It is therefore concluded that claimant's rate of compensation should be determined in this case under Iowa Code section 85.36(8) since the actual earnings cannot be ascertained due to the lack of actual expense information. Sperry did not specify whether the 25 percent was based upon the gross revenues for the load or the gross receipts of the owner-operator, Sperry, which represent 78 percent of the gross revenues (transcript, pages 65 and 66). Jon Christensen, manager for D & C Express, explained that driver wages are 25 percent of gross for drivers employed by D & C Express to drive vehicles owned by D & C Express. Page 2 Since there would be no reduction to 78 percent in that situation, it is found that the 25 percent which represents wages is based on the gross revenues received by D & C Express for the load rather than the gross receipts paid to the owner-operator, Sperry. The figure $955.00 represents 78 percent of the gross revenues. One hundred percent of the gross revenues is therefore $1,224.36. Twenty-five percent of gross revenues, the amount which represents wages, is $306.09. Claimant is entitled to five exemptions, one for himself, one for his wife and one for each of his three minor children. The exemptions are established by stipulations made in the original prehearing report. When applied to the 1983 benefit schedule, weekly earnings of $306.09 provide a rate of compensation of $203.82 for a married person with five exemptions. This method of determining the rate of compensation was urged by the employer in its brief and argument on appeal to the industrial commissioner. The method of computation was likewise urged by the claimant in his statement filed for purposes of this remand decision. The claimant's computations are determined to be correct because the employer's computations used 25 percent of 78 percent of gross revenues, rather than 25 percent of gross revenues as Christensen indicated was the correct basis for computing driver wages. It is therefore concluded that, since Larry L. Sperry has failed to prove his actual expenses, the usual wages of 25 percent of the gross revenues from the load constitute the wages or earnings from which the weekly rate of compensation is to be determined. That rate is $203.82. order IT IS THEREFORE ORDERED that the employer shall pay weekly disability benefits for healing period from August 25, 1983 through November 30, 1983 and eighty-seven and one-half (87 1/2) weeks of permanent partial disability compensation commencing December 1, 1983, all as awarded in the Appeal Decision entered December 10, 1987, with those weekly benefits to be paid at the rate of two hundred three and 82/100 dollars ($203.82) per week as determined by this decision. The entire amount is past due and owing and shall be paid in a lump sum together with interest pursuant to Iowa Code section 85.30 computed from the date each weekly payment came due until the date of actual payment. IT IS FURTHER ORDERED that costs are assessed against the employer pursuant to Division of Industrial Services Rule 343-4.33. Signed and filed this ______ day of ____________, 1990. Page 3 ______________________________ MICHAEL G. TRIER DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr. Allan Hartsock Attorney at Law 4th Floor, Rock Island Building P.O. Box 4298 Rock Island, Illinois 61204-4298 Mr. David Scieszinski Attorney at Law 108 East Fourth Street P.O. Box 394 Wilton, Iowa 52778 3001 Filed September 11, 1990 MICHAEL G. TRIER before the iowa industrial commissioner ____________________________________________________________ : LARRY L. SPERRY, : : Claimant, : File No. 785108 : vs. : R E M A N D : D & C EXPRESS, : D E C I S I O N : Employer, : Defendant. : ____________________________________________________________ 3001 Owner-operator truck driver's wages or earnings for purposes of determining rate of compensation were fixed at 25% of the gross revenues paid for hauling the load, an amount which the evidence showed to be the industry standard. The record did not contain any evidence of actual expenses. Section 85.36(8) was used to determine the rate. Page 1 before the iowa industrial commissioner ____________________________________________________________ : LARRY MARSHALL, : : Claimant, : File No. 785143 : vs. : : D E C I S I O N U.S. GYPSUM COMPANY, : : 0 N Employer, : : A T T O R N E Y and : : L I E N CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ statement of the case Attorney Steven Crowley brings this action to secure an attorney fee lien. Mr. Crowley represented Larry Marshall in a workers' compensation claim. Eventually, Mr. Marshall was entitled to permanent total disability benefits. Mr. Crowley attempted to secure a lien on the benefits payable to Mr. Marshall. Mr. Marshall, represented by Attorney Guy Booth, resisted the application for the lien. As a result, a contested case was initiated. This matter came on for hearing on December 17, 1992, at Burlington, Iowa. Claimant, Steven Crowley, appeared. Defendant, Larry Marshall, and his attorney, Guy Booth, did not appear. FINDINGS OF FACT The undersigned deputy, having reviewed the file in its entirety, finds the following facts: In March of 1982, Larry Marshall was an employee of U.S. Gypsum Company. While performing his regular job duties, he was exposed to toxic chemicals and has been unable to work since March 19, 1992. In August of 1987, the division of industrial services approved an agreement for settlement wherein the parties agreed that claimant was permanently and totally disabled as a result of the injury in March of 1982. Claimant was represented by Ruther, Bauer, Schulte, Hahn, Swanson & Crowley, specifically Attorney Steven Crowley. Attached to Mr. Crowley's application for the approval of his attorney lien is a standard contract for services dated February 1, 1985, signed by Mr. Marshall and Mr. Crowley. Page 2 Paragraph 3.2 of the contract spells out the essence of a contingent fee. The agreement states the following: In the event of recovery, Client shall pay Attorney the following fee based on the amount of the recovery remaining after payment of all expenses: a fee equal to 30% of the recovery if settled without filing suit; a fee equal to 33 1/3% of the recovery after suit is filed and before notice of appeal to any appellate court; a fee equal to 40% of the recovery after notice of appeal; and a fee equal to 40% of the recovery if retried. A contested case proceeding regarding Mr. Marshall's entitlement to workers' compensation benefits was filed March 14, 1985. analysis and conclusions of law Iowa Code section 86.39 provides: All fees or claims for legal, medical, hospital, and burial services rendered under this chapter and chapters 85, 85A, 85B, and 87 are subject to the approval of the industrial commissioner, and no lien for such service is enforceable without the approval of the amount of the lien by the industrial commissioner. For services rendered in the district court and appellate courts, the attorney's fee is subject to the approval of a judge of the district court. The administrative rules which govern practices and procedures in front of the division of industrial services provide that approval of fees under section 86.39 are contested cases (rule 343 IAC 4.1(9)). It has been determined that the following factors are to be considered when approving an attorney fee: 1. The terms of any fee agreement. 2. The time and effort reasonably involved in handling the case. 3. The novelty and difficulty of the questions involved in the case and the skill required to properly perform. 4. The reputation, ability, status and expertise of the attorney. 5. The likelihood that acceptance of employment will preclude the attorney from other employment due to conflicts of interest, unfavorable publicity or antagonism with other clients or other attorneys. 6. The fee customarily charged in the locality for Page 3 similar services. 7. The amount involved in the controversy, the impact of the result upon the client and the result actually obtained. 8. Time limitations, whether imposed by the client or other circumstances. 9. The nature and length of the professional relationship between the attorney and the client. Disciplinary Rule 2-106(B) Iowa Code of Professional Responsibility for Lawyers. This proceeding involves only the fees for the workers' compensation case from the date of the hearing. In other words, Attorney Crowley is not asking for payments from workers' compensation benefits previously paid to claimant. Although this case was eventually settled by an agreement for settlement, the facts of the case indicate it involved substantial issues of law and fact which required competent handling. It was probably a case of greater than average complexity. No evidence was submitted on the amount of time Attorney Crowley spent on the case, nor is there any evidence in the record of customary fees in the Burlington, Iowa area. This case involved a substantial amount of money, and, therefore, the result of the case was critical to the claimant. The results obtained could not have been more favorable to claimant, as he was awarded permanent total disability benefits. The entire file indicates that claimant's original notice and petition was filed in 1985, yet the case was not settled until August of 1987. Contained in the agency file are numerous pleadings and requests for extension of discovery. Also included is a portion of a deposition. After reviewing the entire file, it is found that claimant's fee of 33 1/3 percent of future benefits is reasonable. Attorney Crowley's lien is approved. Page 4 Signed and filed this ____ day of January, 1993. ________________________________ PATRICIA J. LANTZ DEPUTY INDUSTRIAL COMMISSIONER Copies To: Mr Guy Booth Attorney at Law 9th Flr The Center Cedar Rapids IA 52401 Mr Steven J Crowley Attorney at Law 6th Flr Burlington Bldg P O Box 945 Burlington IA 52601 5-1000 Filed January 8, 1993 Patricia J. Lantz before the iowa industrial commissioner ____________________________________________________________ : LARRY MARSHALL, : : Claimant, : File No. 785143 : vs. : : D E C I S I O N U.S. GYPSUM COMPANY, : : 0 N Employer, : : A T T O R N E Y and : : L I E N CNA INSURANCE COMPANY, : : Insurance Carrier, : Defendants. : ___________________________________________________________ 5-1000 Attorney lien granted on future benefits pursuant to contract and fairness of lien.